impair their rights of property under it, when their slaves happen to escape to other States. These other States, whether northwest of the River Ohio, or on the eastern side of the Alleghanies, if out of the Union, would not be bound to surrender fugitives, even for crimes, it being, as before remarked, an act of comity, or imperfect obligation. Holmes v. Dennison et al., 14 Pet. 540. But while within the Union, and under the obligations of the Constitution and the laws of the Union, requiring that this kind of property in citizens of other States the right to service or labor'-be not discharged or destroyed, they must not interfere to impair or destroy it, but, if one so held to labor escape into their limits, should allow him to be retaken and returned to the place where he belongs. In all this there is no repugnance to the Ordinance. Whereever that existed, States still maintain their own laws, as well as the Ordinance, by not allowing slavery to exist among their own citizens. 4 Martin, 385. But, in relation to inhabitants of other States, if they escape into the limits of States within the Ordinance, and if the Constitution allow them, when fugitives from labor, to be reclaimed, this does not interfere with their own laws as to their own people, nor do acts of Congress interfere with them, which are rightfully passed to carry these constitutional rights into effect there, as fully as in other portions of the Union."

See also, Read, J., in State v. Hoppess, 2 Western L. J. 289, and Peck, J., that Kentucky is in the same position as Virginia in respect to this provision, in Ex parte Bushnell, 9 Ohio, 215.

CHAPTER XXVI.

DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. COMPARISON OF THE AUTHORITIES ON THE CONSTRUCTION OF THE PROVISIONS FOR DELIVERING UP FUGITIVES FROM JUSTICE AND FROM LABOR.

§ 727. According to the method proposed at the commencement of the preceding chapter, the question is now to be taken up

By what means are these provisions to be made operative on private persons?

As has already been said, this question involves an inquiry into the construction of these provisions.'

This chapter will be devoted to the examination of the authorities on the question of the true construction of these clauses, and on the incidental inquiry into the basis of whatever power Congress may have to carry them into effect.

§ 728. In discriminating the true bearing of the statutes of Congress and other authorities on these inquiries, it will be necessary to bear in mind the conclusions which any one of the constructions which may be given to them will involve. The four constructions already indicated as possible' may here be properly repeated, and the conclusions to be derived from them, in their special application to these clauses, as to the legislative power of Congress, stated, before proceeding to the citation of the authorities.

1. According to the first construction, these clauses are of the nature of an international compact between the States as distinct political personalities, and resemble, in effect, those principles which, when regarded as an international rule of action for independent states, are law in the imperfect sense only, and affect private persons within the limits of such states 2 Ante, § 602.

1

Ante, p. 379.

only by the will and consent of the local sovereignty. Under this view, consequently, each State in which a fugitive from justice or from labor may be found is severally to be looked upon as the person or party bound by the rule contained in either clause, and, at the same time, as the political source from which it is to derive its coercive effect upon private persons within the limits of such State. Neither clause can be made thus operative except by the State in which the fugitive is found, acting by the ordinary instrumentalities of its organized Government; so that if the execution of either provision is refused or neglected by such State, or its instrument, the State Government, there is no relief for the claimant of the fugitive from labor, in the one case, or for the State demanding the fugitive criminal, in the other; though the just interpretation of the Constitution may require the delivery. The State refusing or neglecting is to be regarded as faithless to an obligation assumed by it in a compact with the other States; but, being sovereign in reference to those relations of private persons within its territory which are affected by these provisions, the claim or demand cannot be enforced, and has no legal validity.

2. According to the second construction, the States are still, as in the first, regarded as the immediate subjects of the rule of action contained in these clauses, and the duties which they create are still taken to be the international obligations of the States, severally, towards another State, or private persons, claiming rights under them. Under this view, the duties which are by these clauses created, for the State in which the fugitive from justice or from labor may be found, differ in no respect from those arising under the first construction, and the difference in the effect, relatively to the right of the demandant State or of the private claimants, arises from the inference or conclusion drawn from the character attributed to these clauses, viz. that they are laws in the strict sense acting on the States as its subjects. From which it is concluded that there must somewhere be a political person distinct from the States the subjects of the law-having power to make it effectual; that this person can be no other than the organized

Government of the United States, the only known administrative instrument of the will of the authors of the rule; and that Congress may legislate to carry into effect the power so vested in that Government.

3. According to the third construction, these provisions act directly on some certain public and private persons, viz.: the Executive of a State and the person to whom the service of a fugitive bondman is due, on the one hand, and the national Government, on the other, creating a relation in which such Executive, or such private person, possesses a right correlative to an obligation of the national Government, and either giving rise to a class of "cases arising under the Constitution," or to "controversies to which the United States is a party," coming within the extent of the judicial power of the United States; or giving occasion for claims against the United States, or against the national Government, for the satisfaction of which Congress may provide in any manner consistent with other parts of the Constitution.

4. According to the fourth construction, while these clauses are taken, as in the preceding view, to be law in the strict and proper sense, private persons only are its immediate subjects, and the rights given and obligations imposed by it are the constituent parts either of relations between private persons or relations between private persons owing an obligation and a State appearing beyond its own jurisdiction as the person claiming the correlative right. Under this view these clauses have the character of private international law, in applying to persons distinguished by their domicil, or by previous subjection to the law of another jurisdiction, but are binding on private persons, within the limits of the United States, as a national municipal (internal) law, without reference to the limits of the States; except as they are the territorial jurisdictions by whose existence the escape of a fugitive, from one system of punitive laws, or from service or labor under a local law, into another forum, is rendered possible. Under this view the right of the claimant owner, or demandant State, and the obligation of the fugitive from labor or from justice exist under that law which has been before de

scribed as that part of the domestic international private law of the United States which, in authority, is identified with the national municipal private law, and therefore called quasiinternational. As a consequence of this construction it will follow, that the demand or claim of such rights and the denial of such obligations will create cases such as are mentioned in the third Article as within the judicial power of the United States, and such as are within the concurrent judicial power of the States, because the subject matter is within the original jurisdiction of the State.

§ 729. The authorities on the construction of the provision for the demand and delivery of fugitives from justice, and, in connection, on the power of Congress to legislate in respect to its execution, are first to be considered.

The earliest authority' is the action of Congress itself.

If Congress, in legislating, had proposed to maintain the right of the demandant Executive, or State, as correlative to a duty of the State in which the fugitive is found (according to the second construction), it would seem that the State owing the duty would have been required or allowed to appear, on hearing of the demand, as a party interested. If the Governor upon whom the demand is to be made derives power in the matter from the Act of Congress, as commonly supposed, it is

'On the marshaling of the authorities, compare ante, pp. 244, 245. In the first controversy which arose under this provision, two years before the act of Congress (ante, p. 386), the public officers concerned differed on the question whether legislation was necessary to give effect to the provision. But none held that the demand and delivery would, under the Constitution alone, be a case within the judicial power. Randolph, U. S. Atty. Gen., who held that no law, State or federal, was necessary, supposed that the Governor, acting for the State, in fulfilling its duty as a political person under the compact, would have power to order the extradition. He argued, "The Executive of Virginia contend that her own Constitution and laws and those of the United States being silent as to the manner and particulars of arrest and delivery, they cannot, as yet, move in the affair. To deliver up is an acknowledged federal duty, and the law couples with it the right of using all incidental means in order to discharge it. I will not inquire how far these incidental means, if opposed to the Constitution and laws of Virginia, ought, notwithstanding, to be exercised, because McGuire and his associates may be surrendered without calling upon any public officer of that State. Private persons may be employed and clothed with a special authority. The Attorney General [of Va.] agrees that a law of the United States might so ordain: and wherein does a genuine distinction consist between a power deducible from the Constitution as incidental to a duty imposed by that Constitution and a power given by Congress as auxiliary to the execution of such a duty?" Am. State Papers, Misc. I., 41.