the most complete on this point of any that have been offered in support of the Act of Congress.

934. From the foregoing exhibition of opinions on the question, whether the Acts of Congress, by providing for removal of the escaped slave without trial of the facts at issue by a jury, are in violation of a constitutional guarantee, it ap pears that those supporting the negative may be discriminated, like those on the former inquiry,' as, first, those which thus determine by reference to the authority of earlier cases, and, second, those which determine it by independent reasoning; and that here, as in the former instance, the greater number of opinions are in the first class, and that here also many judges carefully avoid the expression of their individual opinion, and declare themselves to be following the earlier decisions, sometimes even intimating a misgiving as to their

correctness.

therefore, a subject of legislation how it shall be made. It is not said how it shall be determined; and it is, therefore, left to legislation how it shall be determined. The legislation must conform itself to any constitutional restrictions, if any such are to be found; but where can they be found? It will not be enough to say that the personal liberty of the citizen is a common-law right, and therefore it cannot be interfered with without a suit at common law, and in that a jury must intervene; for it is not true, that the personal liberty of the citizen can not be restrained without a suit at common law; and if it were, slaves are not parties to the Constitution, nor under its protection.

"If it be in the power of Congress to provide for the giving up of fugitives from justice without a trial by jury, which has been practiced on by the States for more than half a century, and never doubted, it seems to me the power is even more free from doubt in the case of a fugitive from service. Fugitives from justice may be, and often are, citizens, and under the protection of the Constitution, and entitled to the benefit of its provisions; fugitives from service, when slaves, are not thus entitled. Fugitives from justice cannot be seized and carried away without some inquiry and legal process; fugitives from service may be taken anywhere, by those having a legal claim, and by force of the legal title carried from the State. If it be said that a person may be seized, and, after this summary inquiry, carried away, who is not a fugitive from service, and thus a citizen may be temporarily, and perhaps finally, deprived of his liberty, because he may not find means to defend himself where he is carried; it may be said also that a person may be carried away, who is not a fugitive from justice, and may be unjustly and oppressively dealt with in the place to which he is transported. The truth is, the Constitution has in view neither of these cases. It provides great general rules and powers, leaving to legislation to guard and limit the practical application of those powers, so that injustice shall not be done; and if opportunity is given for injustice, it is the fault of the Legislature, who have not wisely exercised their powers, but by no means proves that the action of the Legislature exceeds its powers. If, then, the Constitution leaves it to Congress to determine how the claim shall be made, evidenced, and determined, upon which the fugitive shall be given up, I cannot perceive why this summary inquiry by a Commissioner is not constitutionally sufficient, however preferable you or I might consider some other manner of proceeding to be."

1 Ante, p. 679.

The arguments found in the second class of opinions are distinguishable as

1. That which assumes a parallelism between the delivery of the alleged fugitive slave to the claimant, and the delivering up of a fugitive from justice, and find an argument on authority in the customary acquiescence in the latter.

2. That argument which lies in the proposition that, admitting the general application of the objection to such an exercise of power on the part of the national authority, a summary proceeding, as an exception, is specially contemplated by this provision of the Constitution.

3. The argument that, admitting the general application of the objection, the guarantee does not apply in the case of a person claimed as a fugitive from labor, because slaves were not, or are not, "parties to the Constitution.”

4. The argument that, the delivery to the claimant is not a being "deprived of liberty without the process of law," because it is preliminary or ancillary to some ulterior due process of law whereby the right to liberty will be determined; or the argument that it is an extradition, as opposed to a suit at law, or at common law.

5. That which may be called the argument from necessity. 935. 1. As to the first argument, that which has already been said in respect to the same argument, urged in the former instance,' will apply here to show that the parallel does not exist, and the difference between the two acts of delivery will be noticed hereafter in connection with the fourth argument.

936. 2. The argument comprehended in the proposition that a summary proceeding is specially contemplated in the constitutional provision, as ordinarily stated, and as stated by Judge Story in sec. 1812 of his Commentaries, is simple assertion. The question being-is a summary proceeding, or one without the verdict of a jury, sanctioned by the Constitution? the argument is-such a proceeding was contemplated, or is indicated in the provision itself,-therefore, sanctioned. Now, since it is not shown where or by what words in the pro

1 See ante, § 906.

vision this intention of the authors of the Constitution is discovered, the argument, if any, must be founded on something like a distinction between interpretation and construction, and amounts to this: While the fair interpretation of the terms of the guarantee in the Amendment requires the verdict of a jury to sanction such delivery, yet, by construction of the provision, it may be known that an exception is here intended. If this is the argument, the construction resorted to appears to be that under which the provision is regarded as a compact or treaty between the States, and, it being assumed that the State has therein given a guarantee to the other States, it is argued that this guarantee, operating as public law, must override all other guarantees operating as private law. If this were the true construction, it might fairly be urged that this guarantee given by the State to other States must be subject to the preexisting guarantees which it had given to private persons. And if (on the supposition that a guarantee given in the Constitution of the United States must be executed irrespectively of guarantees in State constitutions) this argument might be admitted to justify an extradition by the State's authority in disregard of the State's bill of rights, yet the Constitution of the United States itself contains similar guarantees of the rights of private persons; and all parts of the same instrument must be construed in harmony. Such guarantees in the Constitution are expressly intended to restrain all exercise of powers conferred by national authority, and should apply here; even if it could be maintained that Congress or the national Government are authorized to act, instead of the States, in fulfilling the duty which arises under this construction (according to the theory in the second of the four constructions exhibited in a former chapter), or if the duty of delivery is imposed by the provision upon the national Government, according to the theory connected with the third construction.

It has been said by some that the words "on claim," fairly interpreted, are enough to show that a summary proceeding was intended.' No argument in support of this, from any

1 See Life of Judge Beardsley, 543; counsel in 14 Wend. 519; Conway Robinson's Essay, 6 South. Lit. 100.

previous usus loquendi, has been presented. Such interpretation is only, in fact, another form of stating that construction of the provision which has just been indicated; being equivalent to saying that an international requisition or demand for rendition, made upon the State as a political person, in distinction from a controversy between private persons, results from the character of the provision. The term claim and the term demand used in the clause relating to fugitives from justice are each primarily used to indicate the legal pursuit of private rights.

§ 937. 3. In the third argument-that these guarantees do not apply to persons claimed as fugitives owing service and labor in some State from which they have escaped, because slaves are not, or were not, parties to the Constitution-there is more than one fallacy.

In the first place, it is not as party to the Constitution that the guarantees contained in it apply in the case of any private person. The Constitution is either the act of one party alone, the integral people of the United States, or of as many parties as there are States; the integral people of each State being in that view a party. The idea that any natural person, in his individual capacity, is or was a party, is a relic of the socialcompact theory. If any individual members of society may be discriminated as parties in the genesis of the State and national Constitutions, they must be those who held the elective franchise; and it was never pretended that these guarantees applied to those only who are "freemen" in that sense of the word, even under State constitutions wherein the phraseology is, "no freeman shall be disseized," &c. These guarantees have been declared by some one or more constituent parties (of whom it is enough to know that he or they held the supreme power) for the benefit of certain recipients, who, in that sense, may be called parties; and the argument may be, that persons claimed under this provision are excluded from the number of these recipients, because slaves are not the recipients. It may be admitted that these guarantees do not apply to slaves when introduced into the constitution of a State wherein slavery exists; that they are to be understood as-no freeman, nullus

liber homo, shall be disseized, &c.' But these guarantees in the national Constitution are against the powers of the national Government, even when employed in enforcing the national law; and the national law, of itself, knows nothing of the status of persons as bond or free; it recognizes persons according to the status given them in the State where it finds them. In the eye of the national law, the status of the man who has escaped from a State wherein he was a slave, and who is in a non-slaveholding State, must be given by the law of the latter until the contrary is proved; and how it shall be proved, is to be determined by these guarantees of the Constitution which apply to him as well as to those not liable to such claim. When the question is, how shall a man be proved to owe service and labor, to have escaped, &c., it is absurd to say it is proved by assuming him to be a slave.

It may be objected that these guarantees do not necessarily have a universal personal extent; that, as a personal distinction was recognized in the extent of these guarantees at common law in the several colonies, and that, as it is now recognized in determining the quasi-international recognition of citizens and their privileges and immunities under another clause of the fourth Article, so it must here be applied. The answer here, also, is, that the extent of such guarantee depends on the law of the State, and that, as the national Government recognizes slaves in the slave States as not protected by such guarantee, so, in a State attributing personal freedom to all or any, it must recognize the guarantee as extending to such; and that to except a person from it, because claimed not to be protected by it, when the question turns upon his being a person included under the provision, is absurd.

In the denial of the application of these guarantees there is either a fallacy in the reasoning, or the argument is incidental to the doctrine upon which the doctrine of seizure and removal depends, that the effect of the provision, independently of the

'Williams, Ch. J., in Jackson v. Bullock, 12 Conn. 43.

2 Ante, § 650.

3 That negroes do not participate in the political franchises held by white persons of the same age, sex, and property qualification, is no reason for holding that they do not participate in the benefits of a State bill of rights. See Ely v. Thompson, ante, p. 11.