and to give the provision such a construction as will assimilate it in character to the former law-a law acting directly on the fugitive from justice, and not on the States as political persons.

The compact of 1643 between the New England colonies was between parties politically identified with an influential proportion of the States originally united under the present Constitution, and the eighth article of that compact may be referred to to construe this public act in pari materia. The surrender of fugitive criminals was by that article placed under the administration of the ordinary magistrates, or administered as part of ordinary criminal law.

The Articles of Confederation contain a clause the wording of which is almost the same as that of the constitutional provision.' Under that federative organization, the provisions concerning inter-State relations were made to take effect on the private persons within their respective territory only by the several State or its Government. The provision referred to was not effectual then for the arrest and extradition of a fugitive from justice, without some autonomic action on the part of the State in the fulfillment of its obligation under that compact. But that organization, from its want of correspondence with the essential existence of the people of the United States as the possessors of national sovereignty,' was thrown aside by them for one recognizing that uneradicated public law which, before the Revolution, had integrally combined all the English colonies. The temporary existence of an organization founded on the recognition of one only of the antecedent elements of political existence, i. e., the colonial possession in severalty of a portion of the powers of sovereignty, cannot be held to destroy the value of the former inter-colonial usage as a guide in the construction of this clause.

Even if the fact, that the local law against which the person is charged to have offended proceeds from a possessor of sovereign power entirely distinct from the possessor of sovereign power in the State into which he has escaped, is taken to have destroyed this application of the colonial law, yet the construction here exhibited is that which is most in harmony * Ante, § 346,

1 Ante, p. 3.

2

with the rest of the Constitution. There appears to be no reason for saying that these clauses are exceptional to the Constitution as a whole, and that the rule contained in them must be a rule for the States as political persons acting on them as its subjects. For aught that appears in the Constitution, the right of the State, or of the Executive of the State from which the person charged fled to have the custody of his body, on demand, is correlative to an obligation on the part of the person so charged, in a legal relation between them, and no autonomic action on the part of the State into which he fled is required of it, except as it may choose to exercise a concurrent jurisdiction in applying the law which creates that relation.

797. It is to be noticed here that the demand and delivery provided for by this clause is a right of action belonging to a public and not to a private person. It is a State of the Union which has the rights, in a relation established by the Constitution between it and the persons who are the objects of the demand and delivery. And since, under a republican form of government, the State may be represented by various persons exercising different functions of sovereign power under its public law, it was necessary, under either construction of the clause, to designate who should be recognized as the representative of the State claiming its right. But it is not necessary to infer from this alone that the corresponding obligation created by the clause is a duty of the State in which the fugitive from justice is found, as a political person, or of the State Government or its executive organ.1

§ 798. The pre-existing law affecting the delivery of fugitives from labor is next to be referred to as an index, to the construction of the second of these clauses.

The history of this topic of international law during the colonial period has already been fully given in former chapters of In Kentucky v. Dennison, ante, pp. 427, 428, Judge Taney says, "It is plain," since the "confederation was only a league," and "had no officer," &c., that the demand was to be made on the Executive, and could be made on no other department or officer." (But certainly a State might have provided some other person to represent it in this relation.) Then the Judge argues that the framers of the Constitution, while engaged in establishing a general Government having officers, &c., could not have contemplated any one but the State Executive as the person on whom the demand should be made. Such reasoning may be unanswerable; but can it be called reasoning?

this work. It has been shown that the claim and delivery of such fugitives was altogether a matter of private law, decided by judicial tribunals, whether it was determined by unwritten. or common law, or by intercolonial compact.'

The Articles of Confederation do not contain any clause relating to fugitives from labor. It was determined in each State, before the adoption of the Constitution, by common-law principles only, and was matter for judicial decision only, as it had been during the colonial period. There is probably no instance in which the claim for such fugitive from labor was made upon the Executive of any State or upon the State Government as a claim arising under public international law.

$799. If, then, the pre-existing law may be any criterion of the force and effect of either of these clauses, it indicates that it should receive the fourth of the constructions already indicated, and be understood to act directly on private persons in any one State, irrespectively of any juridical action on the part of the State, and to create a legal relation in which a Governor of a State demandant, or a private claimant, is the subject of the right, and a private person, the fugitive from justice or from labor, is the subject of the obligation.

Although these two provisions may have many points of resemblance, they are entirely independent of each other, and are not necessarily to be construed alike. If there is anything in the terms of the clause relating to fugitives from justice, or in the former customary law on the same subject-matter, to prevent its being thus understood, it still may be that the clause respecting fugitives from labor should receive the construction above indicated.

§ 800. If, then, either of these two provisions is to receive the fourth construction, under which it creates legal rights and obligations irrespectively of national or State legislation, the

See particularly ante, § 322. The proviso in the 6th Art. of the Ordinance for the government of the N. W. Territory (ante, p. 114), declared by the Congress of the Confederation, July 13, 1787, while the convention was in session, may be supposed to have been the model for this provision. There was no occasion for determining the construction of that proviso. The words "may be lawfully reclaimed," &c., indicate, it seems to me, that it should operate as private law, and affect the owner and fugitive immediately; even though the articles are declared to be a compact. Mr. Wolcott, arguing in 9 Ohio, 124, infers the contrary.

question occurs, What is the right and obligation which may exist and be maintained by either provision, under this construction?

§ 801. The right of a State in respect to a fugitive from justice has always been claimed as a right to a delivery of the fugitive by some public person having authority within the forum, and on some formal demand by the Executive of the State from which he fled. It has never been supposed that, by the provision, the demandant State had, in the State wherein the fugitive is found, the same power over him which it had when he was within its territory. It has never been claimed that the Executive authorized to make the demand. might, in virtue of that power, seize the alleged fugitive from justice and remove him to the State in which he is charged with having committed the crime.

Congress has no power to abridge any right given by the provision. The statute of Congress, in requiring the delivery of such fugitive by "the executive authority" of the State into which he may have fled when the demand made shall be accompanied by certain documentary evidence, is a direct authority' of the highest character, that by such a delivery on such a demand the right guaranteed and the obligation created by the provision are maintained and enforced.

802. By parity of reasoning, the Acts of Congress which provide for the delivery of fugitives from labor, by certain public officers, to the person who may have made public claim in a prescribed manner, would seem to be high authority for believing that by such delivery on such claim the right created by the provision in the person to whom the fugitive may owe service or labor, and the obligations which are correlative to it, are maintained and enforced."

But by the highest judicial authority it has been held that the fugitive slave may be seized, by the owner or his agent, and removed from the State in which he may be found, without the action, judicial or ministerial, of any person having within the forum authority to deliver him up on claim. This

See Judge McLean's argument, 16 Peters, 670, post, p. 558, note. * Sims' case, 7 Cushing, 300.

doctrine is so important, not only in its immediate consequences, but also in its bearing on other controverted points, that a full review of the cases must here be given.

§803. A case must first be noticed which, though it is, in fact, only authority on the question whether a claimant may seize the fugitive without warrant when intending to go before some officer named in the Act of 1793 and prosecute his claim, has undoubtedly been often taken as authority for the right to seize and remove by force of the constitutional provision alone. This case is more particularly to be noticed in this series of cases, as in it the doctrine seems to have originated that in the provision persons held to service or labor in one State, escaping into another, are recognized as the property of those to whom their service or labor is due; and, thence, the derivative doctrine, that the Constitution recognizes slaves as property in any part of the United States.

In this case, Commonw. v. Griffith (1823), 2 Pick. 11,' the action being for the seizure of a person as a fugitive, without warrant, Parker, Ch. J., said, ib. p. 18:-"This brings the case to a single point-whether the statute of the United States giving power to seize a slave without warrant is constitutional. It is difficult, in a case like this, for persons who are not inhabitants of slaveholding States to prevent prejudice from having too strong an effect on their minds. We must reflect, however, that the Constitution was made with some States in which it would not occur to the mind to inquire whether slaves were property. It was a very serious question, when they came to make the Constitution, what should be done with their slaves. They might have kept aloof from the Constitution. That instrument was a compromise. It was a compact by which all are bound. We are to consider, then, what was the intention of the Constitution. The words of it were used out of delicacy, so as not to offend some in the convention whose feelings were abhorrent to slavery; but we there entered into an agreement that slaves should be considered as property. Slavery would still have continued if no Constitution had been made.

1 See the circumstances of the case, ante, p. 440.