reported cases. Congress, in legislating, have, it must be assumed, taken the word in the Constitution to extend to the Territories. The District of Columbia is not mentioned in the Act of 1793, but an Act of 1801 (ante, p. 25) supplies the defect. The question of the extent of the word in this provision will hereinafter be further considered in connection with that of the same word in other clauses.

8711. Pursuing the method proposed in the commencement of this chapter, the inquiry is now to be taken up

Who are the persons who may be the objects of the claim and delivery spoken of in the second of these provisions, and in the acts of Congress which have been passed to carry it into effect?1

In this provision persons are described as "held to service. or labor in one State under the laws thereof" and as "escaping into another." The precise extent of these descriptive words has never been considered by the judiciary, and the commentators have not attempted to define it. It would be superfluous to cite decisions here to show that the courts have constantly taken these words to include the slaves of the slave-holding States of the Union."

§ 712. Under this provision, and the acts of Congress based on it, claims have been made by their masters for the delivery of minor white apprentices, fugitives from their indentured service under State laws. In Boaler v. Cummines (1853), 1 Am. L. Reg. 654, where a boy apprenticed in Delaware was claimed, under the law of Congress, Judge Kane, of the Eastern District of Pennsylvania, sustained the master's right, saying, "I know no words that could more clearly include apprentices." This is probably the only reported judicial decision on this point. Such claims appear to have been sustained by U. S. Commissioners in Massachusetts and in Connecticut.'

1 It is here assumed that the acts of Congress may apply to all the persons included under the terms of this provision and to no others. The third and fourth sections of the law of 1793 were the only law of Congress on this subject before the act of 1850, and they were not repealed by the latter. The two acts will be found in notes to Ch. XXVIII.

But it has sometimes been argued that the clause does not apply to those persons; as by Mr. Gerrit Smith on the trial of U. S. Deputy Marshal Allen, (ante, p. 40, n.) In The Unconstitutionality of Slavery, App. A., Mr. Lysander Spooner maintained the same doctrine.

* So stated in IV. Monthly L. R. 526, VI. ib. 178, 295. Judge Sutliff, in 9

In the case of Van Orden, in New York (1854), it was held by U. S. Commissioner Morton that such a claim could not be sustained under the provision.'

§ 713. Since legal relations consist of rights and correlative obligations, the idea of service or labor due, enters, it may be said, to a greater or less degree into every legal relation, and there is in every civil society a large class of relations in which the obligation due is specifically described as being a debt of some sort of service or labor to the person having the corresponding right.'

The extent of the terms here used must be limited by their reciprocal bearing, as well as by the general rules for the interpretation of all these provisions which have been already stated. The words held and escaping express of themselves such a limitation of the relations in which this service or labor is here spoken of as due. The service or labor due must be such as arises from a condition of bondage, and may be specifically enforced by subjection to a personal control. It must be subjection to a private person in distinction from the subjection due to a State or the political representatives of that State. It must be service or labor in such a relation to the dominion of another that the term "escaping" would have been applicable to it in the language of the international law which had been previously recognized in the States which composed the Union. This excludes those services due on ordinary contract, under which the party held to render them must respond by the forfeiture of pecuniary damages in case of refusal to fulfill his obligation. By this rule also the debt of service or

Ohio, 248, says: "For the provision and the act of 1793, according to the opinions expressed by Daniel Webster, Chancellor Walworth, and others, apply as well to apprentices as to slaves. Indeed, I am not aware that a contrary opinion has ever been expressed by any jurist or statesman."

Mr. Morton, in his opinion, given in the city newspapers of the day, held that "the word person in the Constitution and in the sense therein used, is synony mous with slave;" that the decision of the Supreme Court in Prigg's case "has rendered it now impossible to hold otherwise than that apprentices are wholly excluded from having been within the intention of the framers of the Constitution," &c.; that Story, J., in commenting on those clauses of the Constitution where slaves are referred to as persons, must be taken to support this view,

2 The learned reader's recollection of the history of the great law-suit-Poor Peter Peebles v. Plainstanes-may suggest to him the "fugie warrant" which Peter obtained in the English border county for the person of Mr. Alan Fairford, his counsel, as a fugitive from his service. See Scott's Redguantlet, Vol. I. ch. 7. §§ 604-606. * Ante, § 143.

3

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.

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, § 210, 211.

Ante, Vol. I. pp. 269, 326.

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.

1 Ante, 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.

4

Ante, §§ 160-162.