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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.

also denies power in Congress to legislate, and appears to regard the provision as a law acting on the States as its subjects.'

$688. The question, whether Congress or the States have the power to legislate for the purpose of carrying this provision into effect, depends upon the view taken of it as public or private law. Four views or constructions, which it is supposed might be advanced in reference to any of these provisions, have been stated in another chapter. It would appear that, under any construction, the provision should act as a limit to the legislative power of the States, and might be applied by the judicial power of State courts in the first instance, or of the Supreme Court of the United States in the last resort, in declaring void any State law in conflict with it. But whether a case could arise under this provision, which would be within the judicial power of the United States, as a case "arising under the Constitution" of the United States, and not as a case arising between certain parties,' would appear to depend on this question of construction, as does also the legislative power..

§ 689. As already remarked, there is apparently no necessity for supposing that a similar construction, in respect to the persons upon whom they operate, should be given to each of these provisions. But it seems to be generally assumed in all 'arguments on the subject, that it must be presumed that the principles which may be applied to the construction of any one should be equally applicable to the construction of another. For this reason, the authorities on the construction of the other provisions should be examined as guides in the construction of that which is the subject of this chapter.

But, without entering fully into the question of the construction of this provision, it may be argued, consistently with views to be presented in connection with the construction of other provisions of this Article, that the last of the four con

See also the citations from these opinions in Ch. XXVI.

Ante, Vol. I., p. 432. Mr. O'Conor, arg. 20 N. Y. 581:-" It is a curb set on State legislation, harmonizing with the provision which extends the ægis of the federal judiciary to the non-resident citizen in all controversies between him and the citizens of the State in which he may be temporarily sojourning."

3

Ante, § 603.

structions which have been mentioned is that which harmonizes best with the general character of the Constitution; that on the principle of the continuation of private law this provision may be supposed to have been intended to supply a law of national authority, and quasi-international effect, in the place of that law of individual rights for persons of white or European race, which, in the colonies, was maintained by the national or imperial authority, operating equally in every part of the empire, and which maintained those rights in the case of any such person, even against the local authority of any colony or several jurisdiction.

This law would indeed have continued, had the Constitution contained no such provision, to be judicially applied in each State to determine the rights of persons appearing therein as domestic aliens, until it should have been changed under the juridical authority of the State, either by positive legislation or judicial modification of unwritten law. But it may perhaps be said that it would have ceased to have its former extent, since the States, but for these provisions of the fourth Article, would have equal authority over all persons within their limits, whether domiciled inhabitants or domestic aliens. The international recognition of the rights of domestic aliens would, in each State, have depended upon its several will and autonomic recognition of international obligation, and the only private international law which could have been judicially recognized as applying to persons domiciled in another State would have been that which, in its authority, was identified with the local municipal law.'

That is, this would have been the theory of the public law (ante, § 436) But whether there ever was a period when a State would have been patiently allowed to treat the other States as foreign countries may be doubted. See ante, n. 8, on p. 353.

CHAPTER XXV..

OF THE DOMESTIC INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE SECOND AND THIRD PARAGRAPHS OF THE SECOND SECTION OF THE FOURTH ARTICLE. OF THE PERSONS WHO MAY BE DELIVERED UP AS FUGITIVES FROM JUSTICE OR FROM LABOR.

690. The second and third paragraphs of the second section of the fourth Article of the Constitution are as follows:

"2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

"3. No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."

§ 691. The general object of the first of these provisions is the enforcement of State laws which require actual custody of the person. In the additional territorial extent which it communicates to such laws, it modifies the enjoyment of the individual right of personal liberty. But its general effect, as auxiliary to the administration of the criminal law of the States, is a topic beyond the scope of this treatise. A state may however propose, by punitory laws, to secure the maintenance of any particular status or personal condition. Thus the abduction of a free person, except in the maintenance of rights incident to the relation of family, is in every country a criminal act, and, in the common law of England and America, is known as the crime of kidnapping. So, in countries where involuntary servitude exists, the law punishes the act of con

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