person,' &c. No one but the owner, or his agent or attorney, appointed by writing, may claim him. No one may volunteer to render his neighbor a friendly service, by capturing in his behalf and returning to him his fugitive. It must be the master's own act, and its responsibilities be all his own."

Afterwards, on p. 37, Judge Smith argues that the provision contemplates a claim to be judicially determined, in contrast to such a claim as is made by a mere seizure. This part of the Opinion will be cited in another place.'

§ 811. In Ex parte Bushnell, Ex parte Langston, 9 Ohio, 77, the parties had both been indicted, in the United States District Court, for having rescued a negro from the custody of the agent of the alleged owner, who, in the words of the indictments, did "pursue and reclaim the said negro slave, called John, he then and there being a fugitive person as aforesaid, and still held to service and labor as aforesaid, by then and there, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, seizing and arresting him as a fugitive person from service and labor from the said State of Kentucky;" and it is further stated in the indictment that the said slave was then and there "lawfully, pursuant to the authority of the statute of the United States, given and declared, in such case made and provided, arrested, in the custody and under the control" of the said agent, &c. No process or warrant in the hands of such agent is mentioned.*

Judges Swan and Peck, maintaining the power of Congress to legislate, seem to consider only whether Congress had power to pass a law to protect those who might hold in their custody escaped slaves, and, considering the right to seize and remove as having been given by the Constitution, they regard the seventh section of the Act, under which the relators had been indicted,

See post in Ch. XXIX. among cases on the question whether the action of the United States Commissioners involves an exercise of the judicial power.

2 Mr. Wolcott, Attorney-General for the State, argues the case as if the indietments in the United States Court were under a statute for protecting a right to seize and remove the fugitive given by the Constitution, not under a statute for protecting a right to arrest for the purpose of prosecuting the claim according to Act of Congress. He assumes that such a right, under the Constitution, must exist as a foundation for the action of Congress, 9 Oh. 110. His argument against the right, as declared in Prigg's case, is found ib., 146–150.

:

as intended to protect this right. Hence, Swan, Ch. J., did not consider it necessary to examine into the validity of other provisions in the Act of 1850. 9 Ohio, 184, 185. And Judge Peck, ib. 213, referring to the position of the Chief Justice, says :"Nor indeed can the relators be liberated under such a return upon habeas corpus if, under any circumstances, such a rescue would be unlawful and punishable under the Act of 1850. The uniform current of all the authorities has heretofore been, and I am not aware of a single exception, that under the constitutional provision the master may, if he can do so without a breach of the peace, take possession of his fugitive slave; and many other cases may be supposed in which the custody of the owner, for the time, would be lawful, and which the relators would have no right to disturb. If these positions of the Chief Justice are true, and it seems to me that they are so, the objections to the law of 1850, because it does not accord a jury trial to the fugitive before his extradition, and permits a seizure and removal under a warrant of a Commissioner of the Circuit Court, cannot avail the relators, even though those provisions should be regarded as unconstitutional."

But, since the statute connects a seizure without process with a subsequent taking before a court, a judge, or a commissioner, it is evident that the doctrine of a right of seizure and removal under the Constitution was not involved in this case.'

812. The direct judgment of the Supreme Court in Prigg's case, confirmed by repeated dicta in later cases, will probably continue to be received as controlling authority on this point. The following considerations are offered by way of comparing the doctrine of that case with the conclusion indicated by a just application of principles herein before stated.'

The words "no person held to service or labor in one State,

The question might be made, whether any one would be indictable under this statute for obstructing another who should endeavor to remove out of the State the person claimed as owing service, without going before a judge or commissioner. Perhaps an objection might have been sustained against the first count of the indictments in the cases of Bushnell and Langston, that it did not state that the negro was seized and held for that intent. There was another count in the indictment against Langston, charging rescue when the slave was held under a commissioner's warrant,

In Chapters XX. and XXI,

under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor," might, it would seem, have been used to describe an obligation-the obligation of the fugitive. It is admitted by all that the words, "shall be delivered up on claim of the party to whom such service or labor may be due," describe a right-the right of the person to whom the obligation is due. The words which are descriptive of the right are connected, by the conjunction "but," with the words which may have been used to describe an obligation. They therefore may have been used to describe a right and an obligation as correlative, and, on the principle of interpreting words and clauses by their context, there is a presumption that they were so used. Under this view, the extent of "shall not be discharged" is limited by that of "shall be delivered up on claim," not merely because they are part of the context immediately in connection, but because the latter words, in being descriptive of the right, limit the former as descriptive of the obligation.

It would be a very loose interpretation of the terms to say that a claim in pais sufficiently answers the words of the provision, and that when one private person seizes another as his fugitive bondman a "claim" is made, and that such fugitive may be said to have been "delivered up on claim," when the person thus claiming his service has been allowed without molestation to carry him away from the jurisdiction of the State wherein he is found. In Judge Story's argument for the legislation of Congress, it is taken for granted that delivering up on claim is an active duty, either of the national Government or of the State in which the fugitive is found, and that, when a claim is made, some further remedial action is contemplated than that which may be performed by the agency of the claimant himself. The fact that delivering-up is enjoined in connection with a claim, indicates that a proceeding before some organ of public authority is intended, in distinction from such a claim in pais.

§ 813. The Articles of Confederation contained no provision in pari materia which might be referred to for the inter

pretation or construction of this provision. The provision in the Articles of the two Confederations of the New England colonies was in force at a time when slavery and indentured servitude was sanctioned by local law in those colonies. So far as a master's right to reclaim his fugitive slave depended upon this compact, it is clear that the claim was to be made before some public officer,' though it is probable that the nonresident master could, in those colonies, also seize and remove the fugitive from his service; as a person in any of the present slaveholding States may now do in like circumstances.

§ 814. The assertion of a right to seize and remove the fugitive from labor is consistent with the doctrine that in this provision slaves are recognized as property-as chattels-not as persons; but that assertion is not altogether dependent on the recognition of this doctrine. Judge Story supposed the slave might be seized as a person, if not as property. He compared the master's right under the provision to the right which a father has, at common law, to the custody of his child, or that of a master over the person of his indentured minor apprentice, by the law of their domicil.'

'See ante, Vol. I. p. 268, note 5 [b].

216 Peters, 613; ante p. 463. In the case cited ante, p. 561, Judge McLean recognized the authority of Prigg's case for the doctrine of seizure, yet he said in McQuerry's case (5 McLean, 482):-" Under the Constitution and Act of Congress the inquiry is not, strictly speaking, whether the person be a slave or a freeman, but whether he owe service to the claimant. This would be the precise question in the case of an apprentice." This means, if anything, that the fugitive is recognized as a person and not as property. In Jones v. Van Zandt, 2 McLean, 602, he had said:" The Constitution treats of slaves as i persons. The view of Mr. Madison, who thought it wrong to admit in the Constitution the idea that there could be property in men,' seems to have been carried out in that most important instrument. Whether slaves are referred to in it as the basis of representation, as migrating or being imported, or as fugitives from labor, they are spoken of as persons."

In Groves v. Slaughter, 15 Peters, 506, McLean, J., said:-"The Constitution treats slaves as persons. In the 2d section of the 1st Article, which apportions representatives and directs taxes among the States, it provides, 'The numbers shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.' And again, in the 3d section of the 4th Article, it is declared that no person held to service,' &c. By the laws of certain States, slaves are treated as property; and the Constitution of Mississippi prohibits their being brought into that State by citizens of other States for sale or as merchandise. Merchandise is a comprehensive term, and may include every article of traffic, whether foreign or domestic, which is properly embraced by a commercial regulation. But if slaves are considered in some of the States as merchandise, that cannot divest them of the leading and controlling quality of persons, by which they are designated in the Constitution. The character of property is

In later instances it has been held that the fugitive slave is seized and removed as a chattel;' and the right to do this be ing attributed to this provision, it is urged that the Constitution recognizes the person owing service or labor as being a chattel and not a legal person. Some even appear to hold that only as chattels can slaves be recovered under this provision, and that legal persons owing service and labor are not comprehended in its terms."

So far as any argument has been offered to support the assertion that any natural persons are in this provision recognized as chattels, it is, logically speaking, a fallacy, such as has been indicated in the first volume. It is palpable, from the history of slavery in Europe, that persons have been held to service and labor while their legal personality has been recognized.*

given them by the local law. This law is respected, and all rights under it are protected by the federal authorities, but the Constitution acts upon slaves as persons, and not as property."

Judge Baldwin, who in this case delivered a dissenting Opinion, in which he held that slaves were to be recognized as merchandise by the States and the national Government, confessed that he stood "alone among the members of the court." He says (ib. 512):-" Other judges consider the Constitution as referring to slaves only as persons, and as property in no other sense than as persons escaping from service; they do not consider them to be recognized as subjects of commerce, either with foreign nations or among the several States; but I cannot acquiesce in this position. In other times, and in another department of this Government, I have expressed my opinion on this subject; I have done it in judgment in another place,-1 Bald. R., 576, &c.,-and feel it a duty to do it here, however unexpectedly the occasion may have arisen; and to speak plainly and explicitly, however unsuited to the spirit of the times, or prevalent opinions anywhere, or by any persons, my views may be. That I may stand alone among the members of this court does not deter me from declaring that I feel bound to consider slaves as property, by the law of the States before the adoption of the Constitution, and from the first settlement of the colonies; that this right of property exists independently of the Constitution, which does not create but recognizes and protects it from violation, by any law or regulation of any State in the cases to which the Constitution applies." His language throughout is singularly strong on this point, The reasons he gives for his decision, he says (ib. 517), "are drawn from those principles on which alone this Government must be sustained; the leading one of which is, that wherever slavery exists by the laws of a State, slaves are property in every constitutional sense, and for every purpose, whether as subjects of taxation, as the basis of representation, as articles of commerce, or fugitives from service." If this should be held in the literal sense, slaves could not form part of the basis of representation nor be delivered up as persons escaping.

1 See Woodbury, J., in Jones v. Van Zandt, 5 How. 229; ante, p. 493, note. Kauffman v. Oliver, 10 Barr, 516; ante, p. 494.

On Judge Taney's inferences in Dred Scott's case, from this interpretation of the clause. See ante, Vol. I., p. 566, note 3.

Compare authorities which exclude apprentices from the extent of the provision, ante, § 712.

Ante, §§ 160-162.