peared that the mother had absconded from her master and come to Philadelphia, where, after she had resided for about two years, the child was born. She was after apprehended in Philadelphia as the slave of Corse, and delivered to him as such by a magistrate, after an examination of the case."

Tilghman, Ch. J., said (p. 307):-"The case of the absconding slave is provided for without mention of the issue." Yates, J. (p. 308):-"It cannot be supposed for a moment that the child in question, who was not in existence when her mother ran away, had escaped or was a fugitive. Her case, therefore, is not embraced either by the Constitution of the United States or by the act of Congress." This case was followed in Commonwealth v. Alberti, 2 Parsons' Select Cases, 495.

In Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 557, the plaintiff had seized and removed a negro woman and her children, one of whom was born in Pennsylvania more than one year after the mother had escaped from Maryland. The Supreme Court of the United States affirmed the right of the plaintiff to remove these persons, without noticing this circumstance.'

In Fields v. Walker (1853), 23 Alabama, 155, it was held that the children born in Alabama of a slave woman who had escaped from another State could not be claimed and delivered up with her under this provision and the act of Congress, though possession might be taken under the State law; and ib. 166, Union Bank v. Benham, ib. 142, is cited as sustaining the same doctrine.

It has been held, by authorities which will hereinafter be fully considered, that the effect of this provision is to continue, in the State into which he or she may have fled, the status of the slave and the rights of the owner, as they were known to the law of the State in which the escaped slave had been

The question appears to have been raised, whether the issue was born free under the State law, abolishing slavery, of March 1, 1780, and, in view of the exception in the 11th section of that act, Tilghman, J., said:-"It appears to me, therefore, that under the act of assembly this child is entitled to freedom. I desire it, however, to be understood, that it is not intended, to intimate any opinion on nor on the case of a child with which a slave absconding from another State should be pregnant at the time when she came into this State." Compare comment on this case in 1 Cobb on Slavery, p. 79.

'De minimis non curat lex-is Judge Sutliff's suggestion; 9 Ohio, 263.

held to service or labor. Assuming the correctness of this view, it might well be urged that the law of the condition of the issue was incidental to that of the condition of the mother, and that, as increase of the property, the issue belonged to the owner of the slave mother, by the law of the State from which she escaped, extended under this provision.

It will hereinafter be argued that the provision will not bear this construction; that the integral status of the slave is not so continued; that the right of the master is, solely, to have delivery made on a claim, and that the only correlative obligation of the escaped slave, under this provision, is to return to the State from which he or she escaped. In this view there is nothing in this clause to determine the condition of the issue, and it is therefore to be ascertained by that law which in its authority and territorial extent is local or State law.

8724. In Glen v. Hodges (1812), 9 Johns. 67, after the slave had been taken by the plaintiff, the defendant took out an attachment against the slave for debt, on which he was arrested and taken out of the plaintiff's possession. The court said the question is, "Whether the defendant is not responsible in trespass for rescuing the slave, though he did it under the form and color of an attachment for a debt alleged to have been contracted with him by the slave. The negro, being a slave, was incapable of contracting so as to impair the right of his master to reclaim him. A contrary doctrine would be intolerable, so far as it respects the security of the owner's right, and would go to defeat the provision altogether. The defendant, therefore, contracted with the negro and sued out the attachment at his peril. It was a fraud upon the master's right. The fact being established that the negro was a fugitive slave, the attachment was no justification to the party who caused it to be sued out. This must have been so adjudged, if the point had been in Vermont, because the entering into a contract with such slave and the endeavor to hold him under that contract contravened the law of the United States, which protects the master or owner of fugitive slaves in all his rights as such owner. If the slave had committed any public offence in Vermont, and had been detained under the authority of the gov

ernment of that State, the case would have been different, and the right of the master must have yielded to a paramount right. But the interference of any private individual by suing out process or otherwise under the pretense of a debt contracted by the negro was an illegal act and void."

The above dictum, in respect to fugitives who should infringe the penal law, is confirmed in The Commonwealth, ex rel. Johnson, a negro, v. Holloway (1817), 3 Serg. & Rawle, 4, where it was unanimously held that a runaway slave who is charged with fornication and bastardy in the State cannot be delivered over to his master unless security be first given for the maintenance of the child.'

$ 725. The persons who may be claimed and delivered up are described as owing service or labor in a State under the laws thereof, and as escaping into another State. From the terms of the two Acts passed on this subject, Congress must be supposed to have construed the word, as here used, to include a Territory of the United States and the District of Columbia. There are no recorded judicial opinions on the meaning of the word State in this provision.

It has been seen that the word State, in the clause defining the extent of the judicial power of the United States, has been limited by the courts to the organized States of the Union, excluding the Territories and the District of Columbia.' The greater number of opinions seems to be in favor of restricting equally the meaning of the word in the first section of this Article. It would be difficult to say why the reasoning which has supported these opinions should not equally determine the meaning of the word in the several clauses of the second section of this Article. So far, therefore, as there is any judicial authority as to the meaning of the word here, it is rather in favor of the restricted sense.

It does not appear which commitment was the earliest. In Sims' case, he being in the custody of the U. S. Marshal, under an order or warrant of a U. S. Commissioner acting under the law of 1850, and another issuing for a violation of the criminal law of the United States, process was issued by State authority against him for violation of the State law. Opinions of counsel taken on that occasion supported the custody of the United States as against the State; on the ground that priority of possession should decide. IV. Month. L. Rep. 155. The opinion of C. B. Goodrich, Esq., ib. 335, maintains the custody of the United States under the fugitive-slave law, if prior in time, against the penal law of the State.

Ante, Vol. I. p. 433.

'Ante, § 624.

It seems indisputable that the word State, in the Constitu tion, is employed to designate a political community organized in some manner peculiar to that country and nation in and by which that Constitution is recognized as the highest public law, and not in that general sense in which the word state is used by writers on general public law and political ethics Following the pre-existing and continued use of the term in expositions of the public law of the United States, it would seem that the word could not be interpreted in the Constitution as meaning anything else than an organized State of the United States, "a member of the American compact," or "a member of the Union," such as is spoken of in those clauses of the Constitution which prescribe the organization of the Senate and House of Representatives, and the mode of electing a President of the United States."

But if a given text may be construed, by reference to the general purpose of the utterer, as ascertained from the mere interpretation of the terms used and other elements furnished by the context, so as to give to those terms a wider or narrower meaning than they could have by interpretation alone,* there may be sufficient reasons for not thus limiting the extent of the term State in these clauses of the Fourth Article.

It is not a received principle, that a word occurring in different places in one instrument is always to be understood in the same sense. In the clauses prescribing the organization

1

Judge Law, in Seton v. Hanham, R. M. Charlton, 374.

2 Ch. Justice Marshall, in Hepburn v. Elzey, 2 Cranch, 452.

In the case last cited, Marshall, referring to these clauses, says: "These clauses show that the word State is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by most writers on the law of nations. When the same term which has been used plainly in this limited sense in the articles respecting the legislative and executive departments is also employed in that which respects the judicial power, it must be understood as retaining the sense originally given to it."

Lieber's Hermeneutics, 56. "Construction is likewise our guide, if we are bound to act in cases which have not been foreseen by the framers of those rules by which we are nevertheless obliged, for some binding reason, faithfully to regulate, as well as we can, our actions respecting the unforeseen case; for instance, when we have to act, in politics, bound by a Constitution in a case which presents features entirely new and unforeseen.

"Construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text-from elements known from and given in the text-conclusions which are in the spirit, though not within the letter, of the text."

Ante, p. 330, note. Much may depend on the character of the instrument.

of the national Government, and in the last paragraph of this Article, relating to the admission of new States into the Union, the rule enacted is one of public law; it determines the modal existence of the integral people of the United States in their possession of those national powers which, by the Constitution, are "granted" to the Government of the United States.' But the clauses which are here considered define and guarantee rights which are to be claimed by private persons as against other private persons, and, even if they are public law by conferring power on Congress or by limiting the powers of the several States, the protection of private rights by the enforcement of private obligations under a quasi-international private law is the end specifically in view.'

As in each of the organized States of the Union there is a local municipal law emanating from the "reserved" powers held by the State or the several people thereof, so in the District of Columbia and in the several Territories of the United States there is a local municipal law emanating from powers of like nature with those "reserved" powers; powers which, though not held in reservation by a local political people of such District and Territories, but held by the Government of the United States, are like the "reserved" powers of a State, distinct from the powers "granted" in the Constitution to the national Government to be exercised in all parts of the dominion of the people of the United States.' If inhabitants of the organized States may be citizens of such State without reference to the possession of sovereignty by the corporate people of that State, so inhabitants of the District or Territories may be citizens thereof. The public acts, records, and judicial proceedings of the District and Territories are as fitly objects of recognition in international private law as are those of the organized States. Their penal laws have as high a sanction as have those of the States, and free and bond con

In a statute, directed to some well-known end, the rule may be different. See Lord Denman, C. J., in 6 Ad. & Ellis, 68, 69.

Ante Vol. I., p. 407, note 3.

That these provisions have this character, as distinguished from being public international law or treaty stipulations, will be argued in Ch. XXVII.

3 Ante, §§ 376, 397.

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