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be more fully argued,' whether the natural persons claimed under this provision are considered chattels or legal persons by the law of the State in which they had been held to service or labor, it is as legal persons only that they are known under this provision. At what point, in the additive attribution of legal rights to a person formerly held as a chattel, the relation, or the service or labor due under it, would properly cease to be recognized under this clause, is a question which must be of some difficulty, but it is one for which there has been, as yet, no occasion for judicial inquiry.

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1 Post, in Ch. XXVII.

If, as is held in the opinion delivered by Chief Justice Taney, as the Opinion of the Court in Dred Scott's case, it is as property only that slaves are recognized in this provision (ante, Vol I., p. 558, it would seem that only those who were absolute chattels, by the law of the State from which they had escaped, could be reclaimed under this provision. An argument similar to that of Mr. Com. Morton, with regard to apprentices, would apply equally to slaves. It is contended by some Southern writers that the slaves of the slaveholding States are even now recognized as legal persons. South. Quar. R., IX. p. 163:-"Our system of negro slavery is not perfect slavery, because the negro has in many cases a legal appeal from the judgment of his master, who is responsible to the law for cruel oppression, and must answer with his life for the life of his slave." See, also, Sawyer's Southern Institutes, 312; the Delaware cases, ante, p. 76, note; argument of Robert J. Walker, Esq., in Groves v. Slaughter, 15 Peters' Reports, Appendix, liv. In recent arguments it has been often said, that by the law of the slaveholding States the slave is both person and property. Mr. Cobb, Law of Negro Slavery, § 84, a. "In the Roman law, a slave was a mere chattel (res). He was not recognized as a person. But the negro slave in America, protected as above stated by municipal law, occupies the double character of person and property." But, in the very definition of persons and things it is necessary to contrast them, Thing is that which is not person, and person that which is not thing. Only things can be property, and legal persons must have some rights (ante, § 21, 44, 45). Slaves may be property in view of the law of a State, and legal persons in view of the national law (ante, § 507), for the two laws proceed from two distinct sources. It is a contradiction in terms to say that they are legal persons and property in view of one and the same source of law. The responsibility of slaves as natural persons must be recognized even when no rights are attributed to them; that is, where they are known as legal chattels. State v. Thackam, 1 Bay. 358. In No. 54 of the Federalist, Mr. Madison says:-"The true state of the case is, that they [slaves] partake of both these qualities; being considered by our laws, in some respects, as persons, and in other respects as property," and goes on to state their obligations in respect to others, under the law of a State, by which he says they "may appear to be degraded from the human rank and classed with those irrational animals which fall under the legal denomination of property." He then mentions in what respects a slave is regarded by the same law as a moral person; not as a mere article of property." Then he says "the federal Constitution decides with great propriety on the case of our slaves when it views them in the next character of persons and property. This is, in fact, their true character. It is bestowed on them by the laws under which they live [i. e. the State law]; and it will not be denied that these are the proper crite rion," &c. Here Mr. Madison argued on the fallacy which has been indicated, ante, § 507. It is not necessary to conclude that the Constitution regards slaves as property, even if the State does regard them as such, or as both persons and property. But this last is, besides, a legal impossibility.

719. The intention of those from whom the Constitution derives its authority being shown, any objection to the validity of the provision founded on the ethical character of these conditions of involuntary servitude is irrelevant.'

$720. The persons who may be the objects of claim and delivery under this provision as further described as "escaping into another" State.

It has been urged that this description should include slaves who, having been brought by their owner into a non-slaveholding State, may refuse to remain with him or to return.

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*

In Butler v. Hopper (1806), 1 Wash. C. C. R., 501, it was held by Washington, J., "Neither does the second section of the fourth Article" "extend to the case of a slave voluntarily carried by his master into another State, and there leaving him under the protection of some law declaring him free."

In ex parte Simmons (1823), 4 Wash. C. C. R., 396, "The evidence was that Mr. Simmons came to Philadelphia from. Charleston, South Carolina, where he resided and has plantations, in February, 1822, and rented a house for one quarter, which he furnished and in which he continued to reside with his family for three quarters and six weeks; that he brought with him his slave as his property, who remained during that period, or the greatest part of it, in his service as a domestic, and who has remained in Philadelphia until the present time, without any attempt being made by his master to remove him back to South Carolina until the present application" [under

Compare ante, §§ 7, 351. Jones v. Van Zandt, 5 How. 231, Woodbury, J.:Before concluding, it may be expected by the defendant that some notice should be taken of the argument urging on us a disregard of the Constitution and Acts of Congress in respect to this subject, on account of the supposed inexpediency and invalidity of all laws recognizing slavery, or any right of property in man. But that is a political question, settled by each State for itself; and the federal power over it is limited and regulated by the people of the States in the Constitution itself, as one of its sacred compromises, and which we possess no authority as a judicial body to modify or overrule. Whatever may be the theoretical opinions of any as to the expediency of some of those compromises, or of the right of property in persons which they recognize, this court has no alternative, while they exist, but to stand by the Constitution and laws with fidelity to their duties and their oaths. Their path is a straight and narrow one, to go where that Constitution and the laws lead, and not to break both, by traveling without or beyond them." See also McLean, J., in Vaughan v. Williams, 3 McLean, 532; S. C., 3 Western L. J. 67; Shaw, Ch. J., 18 Pick. 219.

the 3d sec. of the act of 1793]. Judge Washington refused the certificate, on the ground that in this instance there was no "escaping" within the meaning of the Constitution, and reaffirmed the doctrine of the last case, adding, "The slave in this case having been voluntarily brought by his master into this State, I have no cognizance of this case so far as respects this application; and the master must abide by the laws of this State so far as they affect his rights. If the man claimed as a slave be not entitled to his freedom under the laws of this State, the master must pursue such remedy for his recovery as the laws of the State may have provided for him.”

In Commonw. v. Aves (1836), 18 Pick. 219, Chief Justice Shaw said, "that, as by the general law of this Commonwealth slavery cannot exist and the rights and powers of slave-owners cannot be exercised therein, the effect of this provision in the Constitution and laws of the United States is to limit and restrain this general rule, so far as it is done by the plain meaning and obvious intent and import of the language used and no further. The Constitution and law manifestly refer to the case of a slave escaping from a State where he owes service or labor into another State or Territory. He is termed a fugitive from labor; the proof to be made is that he owed service or labor, under the laws of the State or Territory from which he fled, and the authority given is to remove such fugitive to the State from which he fled. This language can, by no reasonable construction, be applied to the case of a slave who has not fled from the State, but who has been brought into this State by his master. The same conclusion will result from a consideration of the well known circumstances under which the Constitution was formed." And on page 221, the judge says, that, it is to be presumed that the parties to the constitution "selected terms intended to express their exact and their whole meaning; and it would be a departure from the purpose and spirit of the compact to put any other construction upon it than that to be derived from the plain and natural import of the language used."

The same doctrine was reaffirmed by the same court, in Commonwealth v. Taylor (1841), 4 Month. L. Rep, 274, where the court remanded the person whose right to freedom was in

question, as a minor, to the custody of a guardian appointed by the court.

There are many other cases which might be cited as supporting the same interpretation. Among these the recent cases, Anderson v. Poindexter, 6 Ohio, 622, and The People v. Lemmon, in 20 N. Y. Rep. 562, may be particularly referred to, since they contain very full citations of the older cases.

§721. From the very nature of the whole provision, the persons who are immediately affected by it are spoken of as passing from the jurisdiction of a State, by whose laws another person holds them to service or labor, into some other State, the law of which last may or may not be similar to that of the first. The word escaping has a distinctive meaning in reference to that service or labor which is mentioned in this provision, and implies that the person held to service, by his own volition, or rather without the knowledge and consent of the master or owner, passes beyond the control of the local law which creates the relation between them. It is only persons who have thus escaped from the territorial jurisdiction of the law of the State of their domicil, by which they are held to service or labor, who, under this provision, would be excepted in another State from the ordinary effect of a change of jurisdiction. In a State wherein the local law does not sanction such holding of a person to service or labor as is here referred to, there cannot, in fact, be any escape from the holding of a master, as there is there no law making that service due. If, therefore, the servant or slave enters such a State in any other manner than by escaping into that State from the State which upholds his servitude, he is subject only to the law of that particular State the law (internal and international) resting upon the several will of the local power or sovereignty. Slaves entering with the consent of their owners into another State cannot be "delivered up" to any party under this provision. Whether their former condition is to be maintained within such State, or not, will depend upon private international law as therein received or allowed by the supreme source of the local law, that international rule which, when ascertained, has the authority of positive law over all persons within the jurisdic

tion of the State, but which is not law in the strict sense, in reference to the political persons or people who, by public law, constitute the political State, or are invested with the sovereign powers belonging to one of the States of the United States, or "the People" thereof, and which, in its extent and authority, is identified with the several or local law of the State.'

§ 722. The question of the extent of this provision arises in connection with a variety of modifying circumstances.

In State v. Hoppess (1845), 2 Western Law Journal, 279, it was held that a person held to service or labor under the laws of Arkansas, escaping from a boat on the Ohio River, within low-water mark on the Ohio side, and fastened to the shore, on which boat his master is returning to his residence in Virginia, is within the meaning of the provision and acts of Congress. Judge Read held that it was a consequence of the Virginia deed of cession and her "compact for setting off Kentucky as a State," by which she declared "that her jurisdiction over the river should be common or concurrent to the States bordering upon it;" that "a master navigating the river, whilst on the water, is within the jurisdiction of Virginia or Kentucky for the purpose of retaining the right to his slave.”

§ 723. In Commonwealth v. Halloway, 2 Serg. & Rawle, 305, in which "a habeas corpus having been directed to the keeper of the prison of the city and county of Philadelphia, commanding him to produce the body of Eliza, a negro child, together with the cause of her detention, he returned that he held her by virtue of a warrant of commitment issued by Samuel Badger, Esq., an associate judge of the Court of Common Pleas, who had committed her as being the daughter of Mary, a negro woman, the slave of James Corse, of Maryland, and as such the slave of the said James.' On the hearing, it ap

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1 In any of the cases of claim stated ante, p. 358, the only presumption of law that can be made must be given by the law of the forum of jurisdiction. In the non-slaveholding State the presumption is in favor of liberty; and on the general rule of interpretation, the provision should be interpreted strictly. Ante, § 702. See the remark on a concurrent jurisdiction under such circumstances, recognized in international law; ante, Vol. I. p. 353, n. 2. But could an owner from some State other than Virginia or Kentucky have, under these circumstances, elected to be under the jurisdiction of Virginia or Kentucky?

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