enant. And this covenant not only establishes a confederacy of States, but also, in regard to its most material functions, it gives it the character of a homogeneous national government. The Constitution is not alone federal, or alone national; but by the almost divine wisdom which presided over its formation, while its framers desired to preserve the independence and sovereignty of each State within the sphere of ordinary domestic legislation, yet they evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social, and political effect of the union upon the people themselves. It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different States as between the inhabitants and citizens of the same State." The judge then enumerates the leading grants of power to Congress," in order to form a more perfect union," together with the mutual covenants or guarantees contained in the fourth Article; observing that it must have been intended thereby to make the union more perfect than under the corresponding Article of Confederation, which he recites.

*

"Is it consistent," Judge Clerke asks, "with this purpose of perfect union and unrestrained intercourse, that property which the citizen of one State brings into another, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control? * * By the law of nations, the citizens of one government have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property. This privilege is yielded between foreign nations toward each other, without any express compact. It is a principle of the unwritten law of nations.

"Of course this principle is much more imperative on the several States than between foreign nations in their relation toward each other. For it can be clearly deduced, as we have seen, from the compact on which their union is based. There

fore, making this principle of the law of nations applicable to the compact which exists between the several States, we say that the citizens of one State have a right of passage through the territory of another, peaceably, for business or pleasure, and the latter acquires no right over such person or his property. But the judge who decided this case in the first instance (by whose reasoning, I may be permitted here to say I was erroneously influenced in voting at the general term of the Supreme Court), while admitting the principle of the law of nations which I have quoted, says that the property which the writers on the law of nations speak of is merchandise or inanimate things, and that the principle, therefore, is not applicable to the slaves, who, by the law of nature and of nations, he contends, cannot be property. Foreign nations, undoubtedly, between whom no express compact exists, are at liberty to make this exception. But can any of the States of this confederacy, under the compact which unites them, do the same? Can they make this distinction? In other words, can any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens in their own States, to the service and labor of any person? This is property; and whether the person is held to service and labor for a limited period or for life, it matters not; it is still property-recognized as an existing institution by the people who framed the present Constitution, and binding upon their posterity forever, unless that Constitution should be modified or dissolved by common con

sent.

"The learned judge who rendered the decision in the first instance in this case would, of course, admit on his own reasoning, that if by the law of nations the right was recognized to property in slaves the principle would apply to that species of property as well as to any other, and its inviolability would be upheld whenever its owner was passing with it through any territory of the family of nations. Can it be disputed that the obligations of the States of this Union towards each other are [not?] less imperative than those of the family of nations would be towards each other, if a right to this species of property was

recognized by the implied compact by which their conduct is regulated? The position, therefore, of the learned judge and of the general term, can only be maintained on the supposition that the compact which binds the States together does not recognize the right to the labor and service of slaves as property, and that each State is at liberty to act towards other States, in the matter, according to its own particular opinions in relation to the justice or expediency of holding such property. It may be therefore necessary more particularly, though briefly, to inquire what were and what had been the circumstances of the original States in relation to this subject, at the time of the adoption of the present Constitution; what was the common understanding in relation to it as pointed out by the debates in the convention, and what does the Constitution itself, by express provisions or necessary implication, indicate on this ever important subject."

In this view Judge Clerke mentions some historical facts, and cites Judge Taney's language, 19 How. 425 (ante, 296, 297), that the Constitution recognizes slaves as property, and then referring to the international law or doctrine of comity, observes, ib. pp. 642:-"The relations of the different States of this Union towards each other are of a much closer and more positive nature than those between foreign nations towards each other. For many purposes they are one nation; war between them is legally impossible; and this comity, impliedly recognized by the law of nations, ripens, in the compact cementing these States, into an express conventional obligation, which is not to be enforced by an appeal to arms, but to be recognized and enforced by the judicial tribunals." On p. 642, Judge Clerke recapitulates his positions.'

The brief remarks of Judges Comstock and Selden, in dissenting, seem to lean to the same view of an international law or rule of comity which receives from the general compact such a force and operation that the judiciary may overrule the action of the legislature. But they make no special

'According to Judge Clerke's positions, the claim in these cases may be urged on a fourth ground, besides those already distinguished (ante, p. 358), viz:-As being supported by private international law, indefinitely extended under judicial views of the mutual obligations of the States, and having the force of national positive law by being contained in the Constitution.

mention of this particular provision, and they do not speak of Judge Clerke's reasoning.

§ 674. In Anderson v. Poindexter (1856), 6 Ohio, 623, the question was of the recognition of notes given for the freedom of the defendant, who had been held by the plaintiff as a slave in Kentucky; the defendant having, before the giving of the notes, been in Ohio for temporary purposes, from which place he had voluntarily returned to Kentucky. The court agreed in holding the notes void. The several judges discussed at great length the effect of a temporary visit to Ohio with the owner's consent, on the status of the defendant after his voluntary return. In the plaintiff's points no mention is made of this provision of the fourth Article; nor is it spoken of in the opinions of Justices Bowen, Brinckerhoff, and Swan, who held the notes given without consideration, on the ground that the defendant was a free person at the time. Bartley, Ch. J., regarded the defendant as a slave, and therefore incapable of making a contract. From the portion of his opinion given in the note,' it will be seen that this Judge

After maintaining that, on the doctrine of international comity, the court should recognize the defendant while in Ohio on his master's errand as being still a slave, Judge Bartley (6 Ohio, 686) makes the following observations (italicized as in the report): This rule of law, founded upon comity prevailing among the distinct and independent nations of the earth, rests upon still higher obligations among the people of the several States of the American Union. Having entered into a league of friendship and solemn compact with each other, as the basis of a confederated government, designed to provide for the common defense and general welfare of the several States, to secure to each its liberty and to establish justice and insure domestic tranquillity, they established intimate relations, and laid the foundation for unrestricted and free commercial and social intercourse between the people of the several States; and that, too, when the relation of master and slave actually existed, to some extent, in every State of the confederacy. Having guaranteed to the people of each State inviolability in their rights of private property [?] and security in their domestic tranquillity; having declared that the powers enumerated in the Constitution should not be construed to deny or disparage the rights retained by the people; and having guaranteed the sovereignty and independence of each State, subject only to the powers delegated to the confederacy, they recognized the relation of master and servant, secured the return of fugitives from servitude, and provided expressly, that Full faith and credit shall be given in each State, to the public acts, records, and judicial proceedings of every other State, and that The citizens of each State shall be entitled to all the privileges and immunities of citizens

in the several States.'

"United upon such intimate relations, for such purposes, and upon such terms, under the same confederated government, the people of each State are bound, if not by the express obligations, certainly by the spirit and true intent of the compact, to regard with the strictest fidelity, and in the most amicable spirit of reciprocity, all the peculiar rights of the people of each other State which separate

held doctrines similar to those of Judge Clerke in the Lemmon case, and also would give to the first section of this Article that operation for which Mr. Cobb, as noted in a previous chapter, has contended.'

$675. It is evident that if the law of the State in which the slaveholding citizen from another State may appear is the standard of the rights incident to citizenship, there can be no support given to his claim of ownership by this provision.

It has been seen that this standard is that which is best supported by the authorities bearing on the general question,' and that this particular claim has hitherto been uniformly denied in the free States on this ground.

It has been seen that there are no authorities which broadly state that the rights incident to "the citizens of each State" in the State of domicil are to be the standard of the privileges and immunities guaranteed by this provision, and from the opinions of those who would recognize the master's claim in the circumstances indicated, as supported by it, it may be gathered that they regard his right as included among the privileges and immunities of citizenship, as known by some standard common to the parties who established the Constitution.

§ 676. In the argument heretofore presented, on the question of the measure of these guaranteed rights, it was concluded that the effect of this clause was to continue the pre

and independent nations in their intercourse with each other recognize in regard to the ordinary rights of persons and property, upon the ground of comity. Without this, the harmony required to insure domestic tranquillity' and the free commercial and social intercourse between the people of the several States, essential to the great purposes of the confederacy, cannot be secured. The citizens of each State cannot expect long to enjoy all the privileges and immunities of citizens in the several States,' unless each State maintains a scrupulous regard for comity and reciprocity in this respect. A citizen of Ohio, passing through Kentucky, or going into that State on business, either with his property, or with persons under his guardianship, would expect to be protected in his rights of person and property, held by the laws of his place of domicil, under the full faith and credit' required to be given to the public acts of his State. But if a citizen of Kentucky cannot pass through Ohio, accompanied by his servant, or send his servant into this State on a mere errand, without being divested of his rights secured to him by the public acts of the State of his domicil, there is an end to that comity and reciprocity between the two States required by their relations toward each other as members of the federal compact, which is essential to harmony and unrestricted intercourse between the people of the two States. And such a course on the part of Ohio will subject her citizens to retaliating measures on the part of Kentucky." Ante, p. 262, note 2. Ante, p. 352.

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