of the fact, they determine the extent of the "reserved" powers of the States.

$794. Any one clause of the Constitution must be construed with the presumption that it is in harmony with the nature, scope, and design of the instrument, as apparent on a broad and general view.' In the twelfth chapter of this work it was held that the Constitution is both a declaration of the distribution, between the national Government and the several States, of the sum of powers belonging to an independent nation, and a law in the strict sense acting on all private persons within the United States; for the execution of which law a Government is at the same time established. As correlative to this doctrine, it is also held that (whether the Constitution. was made by the integral people of the United States, or by the States entering into a federal union) the legal character of the Constitution is not in any one part more than in another that of a compact or treaty between independent states, creating duties which may be fulfilled by their separate and subsequent action.

This general character of the Constitution, as a law acting on private persons, and of the Government established by it, as intended to apply that law in determining rights and obligations of private persons, is undisputed.

as containing "provisions which create relations in which the several States or the Government of the United States are, in their political capacity, the subjects of rights or obligations." This is speaking more in accordance with the common phraseology than according to the view taken in the residue of the work. The States are known in the Constitution only as political persons holding certain of the powers of sovereign states or nations, not as subjects of law proceeding from other powers of sovereignty. Hence, the relations which they sustain can never be ordinary legal relations. It is true they may be parties in cases within the judicial power of the United States, so that they appear as claiming rights or denying obligations. But the relations in which these rights and obligations exist do not, properly speaking, arise under the Constitution of the United States. With the exception of questions of boundary between States, the rights litigated by the States seem only to arise from their own several laws. And the question is determined by the Constitution of the United States only so far as it is evidence of the extent of State powers. In some of the earlier cases, before the adoption of the eleventh amendment, there may be intimations of a contrary doctrine; e. g., in Chisholm v. Georgia, 2 Dallas, 464, Wilson, J., said:"For they seem to think that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded." The theory which Judge Sutliff, in 8 Ohio, 243, stated, as the received basis of the legis lation of Congress in respect to fugitives, is at variance with the eleventh amendment. See ante, p. 468, note 2.

See

among Story's rules for construction, Comm. § 405.

Even if a clause precisely similar to one of these provisions of the fourth Article is to be found in the Articles of Confederation,' and if it could, under that system, have been made operative on private persons only by the action of the several States, yet these clauses in the Constitution cannot be held to have the same character, unless the plain interpretation of the words should indicate such a character. For it is matter of history that while the Confederation was in the nature of a federative league, and by many of the articles private persons were not affected except by the co-operation of the several action of the States, the Constitution was conceived of as being in this respect the contrary of the earlier system.

This reasoning should exclude the first and second of the four constructions, or, if it leaves room for either, it is for the first only; since, unquestionably, some of the acts to be done on the part of the States, according to the plan of Government devised by the Constitution, are in the nature of duties arising under the Constitution. But no power to enforce these duties, or to supply a want of action by the States in fulfilling these duties, has ever been pretended, if not expressly given by the Constitution."

The idea of a law acting on the States, and to be made coercive or carried into effect without their action, by some other authority, appears never to have been advanced by any of the framers of the Constitution,' nor to have been discovered

1 See the article quoted ante, p. 384.

2 For example, to send Senators to the national Congress. Compare Smith, J., 3 Wisc. 128, ante, p. 519.

The brief minutes of the debate in the Convention, given by Madison, on this provision, have been referred to on either side to support different conclusions. The subject appears first in the debate, Aug. 28, 1787, on the original provision for extradition of criminals:—

"Mr. Butler and Mr. Pinckney moved to require ‘fugitive slaves and servants to be delivered up like criminals.'

"Mr. Wilson. This would oblige the executive of the State to do it at the public expense.

"Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.

"Mr. Butler withdrew his proposition in order that some particular provision might be made apart from this article."

On the 29th August, Mr. Butler moved to insert an article substantially like the adopted provision. Madison Papers, p. 1447.

All that is to be gathered from this is that, when the thing was first proposed, Wilson looked at it as devolving a duty on the States as the persons bound by the rule, while Sherman regarded it as a rule which would act, as private law, on

in the instrument by any contemporary commentators. There is no evidence that this construction was advanced in Congress when they proposed to legislate.

§ 795. On the principle of the continuation of laws, the international or quasi-international law which had before obtained between the States would have continued to be recognized in the United States, so far as it might be consistent with the provisions of whatever constitution of government should have been adopted. It seems allowable to refer to this preexisting international or quasi-international law in construing the constitutional provisions which create new rules in cases formerly determined by that law.'

It may have been, before the adoption of the Constitution, that the delivering up of fugitives from justice and of fugitives from labor was customarily fulfilled under this international law, while such delivery may have depended solely on the several will of the State in which they should be found. The international law under such a state of things would have been binding on the States only as a law in the imperfect sense. It would have been a rule for them of positive morality," which became positive law only by being identified as to its authority with the local law of the State. But from this fact alone it could not be argued that these clauses have the same character, that character which corresponds with the first construction. For the fact of their having been placed in the Constitution shows that they have a totally different legal character, and that, in the relations to which they apply, the old customary international law is excluded by a rule having a different authority; though that law, as it formerly obtained, might have produced like effects on private persons.

Still, if it cannot be determined from the words of the Con

the master and slave, creating rights to be enforced in courts of law. Strangely enough this remark of Mr. Sherman has often been cited to show that he was opposed to recognizing a property in slaves.

The bill, at first, was for the rendition of fugitives from justice only, to which, when Congress had agreed on it, were added the clauses relating to fugitives from labor; and the bill appears to have passed without much discussion. See Wolcott, arg., 9 Ohio, 139; Sutliff, J., ib. 255; Johnson, arg., 16 Peters, 597. It may be observed, too, that Congress, at that period, assumed the possession of legislative power to an extent which has long been abandoned. See Sutliff, J., 9 Ohio, 257. 'Ante, p. 421.

VOL. II.-35

Ante, § 11.

stitution whether the law contained in these clauses is a law for the States as political persons, or a law for private persons, it may be just to infer that the new rule contained in them corresponds to the pre-existing law in its mode of operation, though it rests on a different authority. It may be argued that, if the delivery of fugitives from justice and fugitives from labor was made only by the State Government, acting in the matter of such delivery for the State as a political person, the clauses were intended to act on the States as its subjects; but that, if the delivery took place by persons administering the private law of the State, the clauses were intended to act as a private law.

§ 796. And, first, as to the pre-existing law respecting fugitives from justice.

From authorities cited in a former chapter, it seems that, in each several jurisdiction of the British Empire, persons who had committed atrocious crimes in other parts of the same empire could lawfully be seized and surrendered for trial; though the law on the subject must have been obscure when the act of 13 Geo. 3, c. 31, was enacted.' The question which is here of importance is, whether such surrender was carried out by ministerial or judicial officers applying ordinary positive law, or was the act of the supreme political authority in such jurisdiction, proposing to fulfill a duty of the state as a political person, a duty arising under public international law.

With reference to the comparative extent of their laws, and the territorial jurisdiction of their several courts, the American colonies were like independent national jurisdictions, and the judgment and process of a colonial court had no intrinsic force beyond the limits of the colony. There was apparently, in this respect, no distinction between matters civil and criminal. As to each, the king was, theoretically, the so-called fountain of justice, or the head of the judiciary. And it would appear that, even after the legislative unions, England, Scotland, and

1 Ante, p. 396, note.

3

2 Story's Comm. § 1307.

Story's Comm. § 184. "The colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial assemblies under their charters."

Ireland were in like manner distinct jurisdictions,' in each of which the criminal or punitory law had a distinct territorial extent, and was applied by administrative and judicial officers whose authority was limited according to that extent. But since, in the theory of public municipal law, all offences or public wrongs were committed against the king's peace or against his crown and dignity, and the king, as prosecutor, was supposed to be everywhere present, the arrest of a person charged with the commission of crime in any one colony or several jurisdiction of the British empire might have been considered equally legal in any part of the king's dominions. The final extradition or removal of the accused would apparently have been beyond the functions of any judge or magistrate, and may have been accomplished by some government-warrant; but it seems that the arrest in such cases was justified by private municipal law, and might have been made by magistrates empowered for ordinary commitments, independently of any special authority from a department of the government having charge of the external relations of the state.

In the English cases, which were noted in an earlier chapter, and in similar cases occurring in the colonies, the sovereign under whose authority the arrest and quasi-extradition of the accused person was made was the same sovereign whose law had been violated in the place where the crime had been committed. The whole proceeding was therefore more like an ordinary arrest and commitment than such arrest and quasi-extradition in one of the States can be under the present division of sovereign power in the United States. The sovereign power of the State wherein the crime was committed is totally distinct from that of the State into which the criminal may have escaped. Yet the constitutional provision emanates from a possessor of sovereign powers who holds them in all the States, i. e., the integral people of the United States, and it may be fair to suppose an intention to continue, substantially, the old law between the colonies,

Molloy, de Jure Mar., B. iii. c. 2; Commonw. v. Simmonds, 5 Binney, 624. 1 Bl. Comm. 268, 270.

See ante, on pp. 395–397.