argument is entirely unsupported by any reasoning, and that the minor is contradictory to the history of international jurisprudence on this question, and originated in the extra-judicial dicta of judges of slaveholding States, and the arguments of executive officers and w-book-writers of those States.

§ 680. It has been shown, in the ninth chapter of this work, that the international law or "comity" had ceased, at the time of Somerset's case, to support the owner's claim in any case. In the same chapter, it was shown that the ownership, in respect to slaves, could be supported under the international rule of transit only, if ever, while slaves were property or chattels by the jus gentium or universal jurisprudence; that long before the formation of the Constitution slavery of negroes born in the colonies and States had ceased to rest on universal jurisprudence, and was then ascribable solely to the particular law, jus proprium, of some one colony or State; while it is also questionable whether the condition had not so essentially changed, even under the local laws of the slaveholding colonies or States, that the slave was no longer property, but a person owing service in a relation to another person.*

§ 681. And if it is urged that, though the chattel character of slavery is now not recognized in jurisprudence, yet the right of the master to the services of his slave, is a property, because it is valuable or may be bought and sold,' it must be replied that it cannot be property beyond the sphere of the local law which enforces the obligation of the slave. The provision must be interpreted or construed like a treaty, and if the question turns upon what is property, there is but one standard of property as between independent communities-that is, universal jurisprudence, exhibited in the international intercourse of all civilized nations, and particularly in the law of commerce.

Besides, on general principles of interpretation, it may be objected to this argument that it proves too much; it would make every valuable right existing by the local law one which could be protected by this provision.

1

Ante, § 308.

Ante, §§ 283, 284.

Which is Judge Clerke's proposition, ante, pp. 363, 364.

Compare, contra Mr. O'Conor's argument, 20 N. Y., 573. If it is said that it is property in view of this provision because, by the provision, the local law of property in respect to slaves is taken up and carried beyond its original habitatthis is reasoning-in-a-circle.

§ 682. And if, again, it is said that the Constitution in other places recognizes the existence of those rights of mastership and the corresponding obligations which enter into that state which we call slavery-that therefore the Constitution recognizes the property which the master .. by State law, generally, or beyond the instances specified in that instrument-the argument is simply a fallacy, which has been already indi

cated.'

Besides, these very clauses of the Constitution, recognizing the right of a slave-owner, being a citizen of a State, to the custody of his slave in the instance of his escape, are an argument against this claim, on the general rule-expressio unius est exclusio alterius."

§ 683. The claim of the slave-owner, being a citizen of some State of the Union, can be supported by this provision only in that case in which it would at the same time be recognized by the private international law resting on the authority of the several State. The question whether such claim is now supported by law, in the so-called free States, will be properly considered in another chapter. But it is here to be noticed that, whether the unwritten private international does or does not support that claim in any State, it is a law subject to the legislative action of the State, and the judicial tribunals are bound to take the law as given by the legislature. For, as above stated, the reserved powers of the State are not limited in this respect by any part of the Constitution.

684. Independently of the question whether the absolute slavery of negroes may be supported under this provision, a question regarding the maintenance under it of, other bond conditions might arise. There are probably no cases in which the claim of a master to the custody of a fugitive minor apprentice has been claimed as specifically guaranteed by this provision. Even if not comprehended under the provision respecting fugitives, it would seem that it might, as a well-known common-law relation' which, as such, must have been customarily recognized in the colonies and States, be supported by this provision.

1 Ante, § 507.

See passim, in the cases referred to, ante, p. 358, note 1. 'Ante, § 249.

§ 685. It will be remembered that whatever may be the true interpretation of these clauses, as indicating certain persons and certain rights, the question arises of the operation of the provision, or-in what manner are the ends contemplated by it to be attained? The question then arises of the character of the provision, as either public or private law; that is-who are the persons upon whom, as a rule of action, it operates?

This, as has been indicated, is a question of construction, as distinguished from interpretation.' Without attempting to indicate each of the several constructions which might possibly be given to this provision, it is enough to say that it is either, 1-a rule acting on the States as political persons, creating a duty in them to do or to forbear doing something in respect to the citizens of each other State; or it is, 2-a rule acting on private persons, and affecting the rights and obligations of the citizens of each State in certain relations with other persons.

If the provision has the character first described, it will depend upon the existence of other provisions in the Constitution whether it may be made to operate on private persons with the authority of national municipal law, or whether its legal operation must be sought in that law which, in authority and extent, is the local law of a several State.

But, if the character of the provision is that secondly above described, the provision is itself part of the national municipal private law which must be applied by all tribunals exercising the judicial power of the United States, and also by State tribunals exercising concurrently the judicial power of the State under the Sixth Article of the Constitution; while each State in the exercise of its reserved powers is at the same time prevented from infringing the rights accorded by the provision to private persons, and State laws, in their application to citizens of other States, must be subject to judicial power applying this part of the Constitution as public law.

§ 686. It is first proper to look for legislative constructions of this provision. And here the utter absence of any legisla

Ante, § 601.

tion either. State or national, for the purpose of carrying this provision into effect, is, negatively, an index of its construction. Congress has not hitherto passed any law expressly designed to maintain the privileges and immunities of citizens appearing as domestic aliens in any State. But neither, on the other hand, have the State legislatures ever deemed it necessary for them to pass laws to secure those privileges and immunities.

But the mere fact that the citizens of the several States have enjoyed some of the privileges and immunities of citizens in the other States, is not of itself any positive index of its construction, because it does not appear but that the same privileges and immunities would have been equally enjoyed by the same persons had there been no such provision.

§ 687. There are only a few judicial dicta which can be referred to on this question, besides those which may be contained in the opinions already cited in this chapter.

A part of the opinion written by Chief Justice Hornblower, of New Jersey, in 1836, in Himsley's case, will hereinafter be noted, in which he maintains that Congress has no power of legislation in reference to any of these provisions, except the first section of this Article, and that only by the express grant of power contained in it. He appears to give to all these provisions the first of the four constructions already indicated.'

In Miller v. McQuerry (1853), 5 McLean, 477, Judge McLean, in a charge to the jury, sustaining the power of Congress to legislate in reference to the fugitive-slave provision, said: "The Constitution provides that full faith and credit shall be given to the public acts, &c., of one State in every other. If an individual, claiming this provision as a right, and a State court shall deny it, on a writ of error to the Supreme Court of the Union such judgment would be reversed. And the provision that the citizens of each State shall be enti

1 Ante, p. 358. In this opinion, Judge Hornblower, in supporting his construction by views of political expediency, says: "Legislation by Congress, regulating the manner in which a citizen of one State should be secured and protected in the enjoyment of his citizenship in another, would cover a broad field, and lead to the most unhappy results." See the fuller citation of the opinion, post in Ch. XXVI. The occasion of the opinion is described, ante, p. 64.

tled, &c., Congress unquestionably may provide in what manner a right claimed under this clause and denied by a State may be enforced. And if a case can be raised under it, without any further statutory provisions, so as to present the point to the Supreme Court, the decision of a State court denying the right would be reversed.""

Judge Smith, of Wisconsin, in Booth's case, 1854, 3 Wisc. 35, asks:—“What would be thought by the people of this country, should Congress pass a law to carry into effect that clause of the fourth Article in regard to citizenship?"

In Chief Justice Taney's opinion in Dred Scott's case there are one or two passages bearing on this question. They are to be found in the citations already given. The principal observations are those on p. 423 of the report, in the first paragraph, given also in p. 296 of this volume, in the first paragraph. The other is on p. 425 of the report, in a passage cited on p. 347 of this volume, describing the consequences of recognizing the younger Darnal as a citizen.

From these dicta it may be inferred that Judge Taney would construe the provision as private law creating rights and obligations in relations between private persons, and hold that those rights, as "the privileges and immunities of citizens" intended, may be maintained by the national judiciary, irrespectively of the juridical action of the State in which the citizens who may claim them shall appear.

In the cases of Bushnell and Langston (1859), 9 Ohio, 75, where the power of Congress to legislate for carrying out the fugitive-slave law was sustained by a majority of the court, Brinckerhoff, J., in his dissenting opinion, ib. 225, says of this provision and that for the surrender of fugitives from justice: "That these clauses are mere articles of compact between the States, dependent on the good faith of the States alone for their fulfillment, I suppose no one will dispute. They do not confer upon Congress any power whatsoever to enforce their observance." Sutliff, J., in the same case, ib. 231-237,

'It should be remembered that this was said only in a charge to a jury. The whole is very carelessly put together. Judge McLean did not here even notice the fact that a power had been specially given to legislate in reference to the proof and effect of acts, judgments, &c.