Page images

existing quasi-international law of the colonies so far as it contained a common standard of the rights of a citizen of one locality when appearing as a domestic alien within


It has been shown in the former part of the work that so far as the common law of England, operating as a personal law with national extent in the colonies or the States, was the standard of these rights, it did not maintain the claim of a slave-owner.'

677. It may be urged that some rights, though not recognized by the common law of England having this extent in the colonies and States, may have been recognized by that law which had international operation in the colonies and States, and took effect also as personal law.

But the question here is rather of rights supported by law resting on imperial and national authority, and it has been seen that the right of slave-ownership was thus supported only, if ever, so long as property in slaves rested on universal jurisprudence, and that afterwards it was dependent for its recognition upon private international law, as received and allowed in each colony or several State in the independent exercise of its local sovereignty.' Therefore, admitting the private international law prevailing in the colonies or States before the adoption of the Constitution to be the standard of these privileges and immunities, and that rights recognized by international law receive additional force and guaranty from this provision, it does not give the right in a non-slaveholding State; for there, according to the principles of international private law as understood at the time of the adoption of the Constitution, the right is not to be recognized.

§ 678. So, too, even if it were to be admitted that private international law, or the doctrine of a comity to be administered by judicial tribunals, did or does allow or require such tribunals to accord to the alien slaveholder the right of passage or transit either at his pleasure, or at his convenience, or at his necessity, with his slave or bond-servant, it is also plain that

1 Ante, § 284, a; § 293, 4th proposition.
Ante, ch. IX., and particularly § 312.

this action of the court is founded only on the presumed intention of the lawgiver of the forum of jurisdiction-the several State, in this instance. Therefore, even if a State court may ohould, in applying this doctrine of comity in the absence Gary more direct evidence of the State's will, recognize the slaveholder's claim in these circumstances, yet the power of the State itself, to declare what it will or will not do out of comity, is not restricted. The judiciary is to enforce the will of the State in this matter of international comity, and not its own idea of what comity may dictate. In expressing the will of the State in this matter, the legislature is superior to the judiciary, as in all matters within the "reserved powers" of the States, if there is no restriction in the State constitution.'

Besides, this doctrine of courts determining the rights of private persons by their conception of what international comity may require of the nation, country, or State whose law they administer, is simply a delusive error, as in the second chapter of this work it has been attempted to show. The real basis of the slave-owner's claim, wherever it can be recognized, must be the judicial presumption in favor of the continuance of relations created by the law of another jurisdiction; when not inconsistent with some right or obligation universally attributed in the forum of jurisdiction."

§ 679. If the argument is—that the intention of the provision is to secure against State legislation all rights which, at the time of the formation of the Constitution, were allowed by private international law as then received; that the right of a non-resident slaveholder to pass and repass with slaves, was a right so allowed-it appears that the major proposition of the

1 See ante, §§ 78, 122. Denio, J., 20 N. Y. 609. Ante, §§ 88, 116.

The proposition appears in Judge Clerke's opinion, ante, p. 364, though it is there merged in the much broader doctrine, that the effect of the Constitution is to create a general inter-State comity, the application of which devolves upon the judiciary as charged with the execution of the Constitution as the supreme law of the land; that this comity is equally a restriction on the legislative power as are the grants of power to a national government or the enumerated restrictions on the States. This indefinitely vast branch of national law is derived by Judge Clerke, it is to be noticed, not merely by interpretation and construction of the several clauses of the Fourth Article, but simply from the idea of the Constitution. The doctrine may have been, for the first time, broadly stated in a judicial opinion in the Ohio case, by Judge Bartley, though it is not altogether new.

VOL. II.-24

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 argumen' of executive officers and law-book-writers of those States.

680. It has been shown, in the ninth chapter of al 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.



Ante, § 308.

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 habitat— this is reasoning-in-a-circle.


Ante, §§ 283, 284.

§ 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 has by State law, generally, or beyond the instances specified in that instrument-the argument is simply a fallacy, which has been already indicated.'

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.

[ocr errors]
« ՆախորդըՇարունակել »