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labor under the relations of the family may be excluded from the scope of this provision.

According to the historical exposition of colonial law, the only debt of service or labor which was internationally maintained between the several jurisdictions was that incident to the definite condition or status of involuntary domestic servitude and personal bondage. It has been shown that there were two kinds of bondage thus recognized, viz.: the condition of servitude of a legal person, under indenture for a term of years, and of chattel bondage or absolute slavery, which by the customary or common law at least could exist only in the case of persons of negro or Indian race. Whether any debt of service or labor incident to a condition distinct from these, in its legal nature or historical origin, could be recognized under this provision, may be questioned.

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714. The servitude, under indenture, of adult whites, has for a long time been unknown in this country. It might be urged that it was a peculiar incident of the period of colonization and the then-existing private international law, and, at the time of the adoption of the Constitution, was recognized as having only a residuary and temporary existence. Since its expiration, personal freedom, as a "natural" or "inherent" or "inalienable" right, seems to have been attributed by the common law of each State to every person of the white race.' Though it would appear to be within the power of any State to legalize it, by statute, within its own limits, it may be questioned whether it could be thereupon recognized in other States under this provision.

§ 715. It would appear that the claim of a master on the person of a minor, being a fugitive owing service and labor under indentures of apprenticeship in another colonial or State jurisdiction, must have always been allowed in the several colonies and States; either under common law, including the international private law, or under compacts for the delivery of runaway servants, like that contained in the New-England articles of confederation. So that, on the principles herein adopted for the interpretation of these provisions, such a claim Ante, Vol. I. pp. 269, 326.

Ante, § 210, 211.

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should now be supported under this provision; even if it could not be maintained under the guarantee of the "privileges and immunities of citizens" according to the argument in the last chapter.'

§ 716. If the pre-existing international and quasi-international law, as set forth in the historical portion of this work, may be referred to, to interpret the terms of this provision, there can be no doubt of its application to persons of African race owing service or labor in those existing conditions of chattelslavery, or domestic involuntary servitude, which, in some of the States, have been derived from the earlier law of nations, or universal jurisprudence.'

On the principle that when the meaning of written enactments is doubtful they may be construed from the intention of their authors as it may be gathered from history,' it is also proper to refer to the history of the formation of the Constitution and to the circumstances of the country as they are known to have presented themselves to the minds of those who framed and those who adopted the Constitution. The historical proof that this provision was intended to apply to negroes held in absolute slavery has, by the courts, been constantly regarded as overwhelming.*

1Ante, p. 371.

In Miller v. McQuerry (1853), 5 McLean, 472, it was contended that no proof had been offered "that Kentucky is a State in which slavery is authorized by law;" that "there was no law in the South expressly establishing slavery" (relying probably on the dogma, slavery exists only by positive law). McLean, J.:— "With regret I hear this argument in this case. It was used by gentlemen of the South to justify the introduction of slavery into our Territories, without the authority of law." Then, quoting 15 Peters, 450,-"that slavery was local, and that it could not exist without the authority of law; that it was a municipal regulation," the judge adds:—“ Whether this law was founded upon usage or express enactment, is of no importance. Usage of long continuance, so long that the memory of man runneth not to the contrary, has the force of law. It arises from long recognized rights, countervened by no legislative action. This is the source of many of the principles of the common law of England. And this, for a century or more, may constitute slavery, though it be opposed, as it is, to all the principles of the common law of England. I speak of African slavery. But such a law can only acquire potency by long usage," &c. Here Judge McLean attributes negro slavery to particular custom, as defined in English law-a doctrine entirely different from that set forth in the historical exposition of the subject in this work, and incompatible with any recognition of slavery in the Territories, under any of the views presented ante, pp. 180-185.

3 Ante, § 651.

'Prigg's case, 16 Peters, 611, 612, Story, J.:-"Historically it is well known," &c. U. S. Deputy Marshal Allen's case, Syracuse: Judge Marvin :-" All contemporaneous history shows that this provision related to slaves." Pamp.

717. By the same reasoning it would appear that any person of mixed race, descended from a line of female ancestors of negro or mixed blood, if held in involuntary servitude in a State, may be claimed and delivered up under this provision. For, by customary law, such persons may have been held as slaves in the colonies and States, however small the proportion of negro blood should have been.

It would seem that there is no correspondence between the discrimination of race in capacity and incapacity for citizenship, in view of the first provision of this section of the fourth Article,' and the discrimination of race in liability and nonliability to claim and delivery under this provision. Of persons having an equal admixture of negro blood, some may be citizens of a State in view of the first, and some may owe service or labor in view of the latter."

$718. Supposing that the servitude of white adult persons, under State laws of indenture, should not be recognized under this provision,' yet, in the case of negroes, it should be remembered that in some of the colonies, or at least in some of the States at the time of the adoption of the Constitution, the chattel-slavery of negroes had become modified by a greater or less attribution of rights and a recognition of legal personality; that in late instances in other countries chattel-slavery has been transmuted into a so-called apprenticeship, under special statutes; and, to recur to more ancient periods in the history of slavery, the transition from an absolute chattel condition to a modified bondage has been the constant phenomenon of its decrease and extinction. The debt of service or labor, in a relation derived through a modification or amelioration of an anterior chattel-slavery, though in many respects essentially different from it, should therefore, it would appear, be recognized under this provision. Indeed, as will hereinafter Rep. p. 94. Judge Smith, in Booth's case, 3 Wisc. 16:-"Let it be taken for granted that this clause was intended to refer exclusively to fugitive slaves, of which, I think the history of its adoption into the Constitution leaves no doubt." 'Ante, p. 340.

In the case of John Bolding, in August, 1851, in New York, before U. S. Commissioner Morton, an attempt was made to show that B. had no negro blood. The Commissioner held it incumbent on the claimants to establish, in the first place, that B. had African blood in his veins, and was, therefore, capable of being a slave. See N. Y. daily journals of that date.

Ante, § 714.

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Ante, §§ 160-162.

be more fully argued,' whether the natural persons claimed under this provision are considered chattels or legal persons by the law of the State in which they had been held to service or labor, it is as legal persons only that they are known under this provision. At what point, in the additive attribution of legal rights to a person formerly held as a chattel, the relation, or the service or labor due under it, would properly cease to be recognized under this clause, is a question which must be of some difficulty, but it is one for which there has been, as yet, no occasion for judicial inquiry.

'Post, in Ch. XXVII.

2 If, as is held in the opinion delivered by Chief Justice Taney, as the Opinion of the Court in Dred Scott's case, it is as property only that slaves are recognized in this provision (ante, Vol I., p. 558, it would seem that only those who were absolute chattels, by the law of the State from which they had escaped, could be reclaimed under this provision. An argument similar to that of Mr. Com. Morton, with regard to apprentices, would apply equally to slaves. It is contended by some Southern writers that the slaves of the slaveholding States are even now recognized as legal persons. South. Quar. R., IX. p. 163:-"Our system of negro slavery is not perfect slavery, because the negro has in many cases a legal appeal from the judgment of his master, who is responsible to the law for cruel oppression, and must answer with his life for the life of his slave." See, also, Sawyer's Southern Institutes, 312; the Delaware cases, ante, p. 76, note; argument of Robert J. Walker, Esq., in Groves v. Slaughter, 15 Peters' Reports, Appendix, liv. In recent arguments it has been often said, that by the law of the slaveholding States the slave is both person and property. Mr. Cobb, Law of Negro Slavery, § 84, a. "In the Roman law, a slave was a mere chattel (res). He was not recognized as a person. But the negro slave in America, protected as above stated by municipal law, occupies the double character of person and property." But, in the very definition of persons and things it is necessary to contrast them. Thing is that which is not person, and person that which is not thing. Only things can be property, and legal persons must have some rights (ante, §§ 21, 44, 45). Slaves may be property in view of the law of a State, and legal persons in view of the national law (ante, § 507), for the two laws proceed from two distinct sources. It is a contradiction in terms to say that they are legal persons and property in view of one and the same source of law. The responsibility of slaves as natural persons must be recognized even when no rights are attributed to them; that is, where they are known as legal chattels. State v. Thackam, 1 Bay. 358. In No. 54 of the Federalist, Mr. Madison says:-"The true state of the case is, that they [slaves] partake of both these qualities; being considered by our laws, in some respects, as persons, and in other respects as property," and goes on to state their obligations in respect to others, under the law of a State, by which he says they "may appear to be degraded from the human rank and classed with those irrational animals which fall under the legal denomination of property." He then mentions in what respects a slave is regarded by the same law "as a moral person; not as a mere article of property." Then he says "the federal Constitution decides with great propriety on the case of our slaves when it views them in the next character of persons and property. This is, in fact, their true character. It is bestowed on them by the laws under which they live [i. e. the State law]; and it will not be denied that these are the proper crite rion," &c. Here Mr. Madison argued on the fallacy which has been indicated, ante, § 507. It is not necessary to conclude that the Constitution regards slaves as property, even if the State does regard them as such, or as both persons and property. But this last is, besides, a legal impossibility.

§719. The intention of those from whom the Constitution derives its authority being shown, any objection to the validity of the provision founded on the ethical character of these conditions of involuntary servitude is irrelevant.'

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§ 720. The persons who may be the objects of claim and delivery under this provision as further described as escaping into another" State.

It has been urged that this description should include slaves who, having been brought by their owner into a non-slaveholding State, may refuse to remain with him or to return.

In Butler v. Hopper (1806), 1 Wash. C. C. R., 501, it was held by Washington, J., "Neither does the second section of the fourth Article" * * "extend to the case of a slave voluntarily carried by his master into another State, and there leaving him under the protection of some law declaring him free."

In ex parte Simmons (1823), 4 Wash. C. C. R., 396, "The evidence was that Mr. Simmons came to Philadelphia from Charleston, South Carolina, where he resided and has plantations, in February, 1822, and rented a house for one quarter, which he furnished and in which he continued to reside with his family for three quarters and six weeks; that he brought with him his slave as his property, who remained during that period, or the greatest part of it, in his service as a domestic, and who has remained in Philadelphia until the present time, without any attempt being made by his master to remove him back to South Carolina until the present application" [under

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Compare ante, §§ 7, 351. Jones v. Van Zandt, 5 How. 231, Woodbury, J.:— "Before concluding, it may be expected by the defendant that some notice should be taken of the argument urging on us a disregard of the Constitution and Acts of Congress in respect to this subject, on account of the supposed inexpediency and invalidity of all laws recognizing slavery, or any right of property in man. But that is a political question, settled by each State for itself; and the federal power over it is limited and regulated by the people of the States in the Constitution itself, as one of its sacred compromises, and which we possess no authority as a judicial body to modify or overrule. Whatever may be the theoretical opinions of any as to the expediency of some of those compromises, or of the right of property in persons which they recognize, this court has no alternative, while they exist, but to stand by the Constitution and laws with fidelity to their duties and their oaths. Their path is a straight and narrow one, to go where that Constitution and the laws lead, and not to break both, by traveling without or beyond them." See also McLean, J., in Vaughan v. Williams, 3 McLean, 532; S. C., 3 Western L. J. 67; Shaw, Ch. J., 18 Pick, 219.

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