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§ 815. Judge Story's deduction of the right to seize and remove the fugitive from labor is based entirely on interpreting the words which may have been intended to describe the obligation of the fugitive, without reference to the words which he regarded as describing the right of the claimant. In speaking of the whole provision under the designation" the clause," he says it "manifestly contemplates the existence of a positive unqualified right on the part of the owner of the slave, which no State law or regulation can in any way qualify, regulate, control, or restrain." The existence of a positive right under this provision in the person to whom the service or labor is due by the law of the State from which the bondman escaped -a right which cannot be modified by the law of the State in which he is found-follows of course from construing the provision as positive law, or as it is regarded under the fourth construction. But Judge Story declared' this in connection with the proposition-" The slave is not to be discharged from service or labor in consequence of any State law or regulation." He said:-"Now, certainly, without indulging in any nicety of criticism on words, it may fairly and reasonably be said that any State law or State regulation which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom."

By thus resting the right to seize and remove upon the words, "shall not be discharged from such service or labor," Judge Story declared, in effect, that the relation in which the debt of service existed was the same in the forum of jurisdiction as in the State by whose law the fugitive had been held to service. This he also asserted in these terms:-"The clause puts the right to the service or labor upon the same ground and to the same extent in every other State as in the State from which the slave escaped and in which he is held to service or labor." 2

116 Peters, 612; ante, p. 463.

See a similar assertion by Judge Shaw in Sims' case, 7 Cushing, 295, ante, p.498. The cases in which it has been held that the provision does not extend to the issue of fugitive slave women are authorities against the doctrine that the status con

Judge Story has not offered the slightest argument for this all-controlling interpretation of the words "shall not be discharged." If he has produced anything, by way of construction of the whole provision, to support the doctrine, it is by supposing a discovery of the intention of the framers of the Constitution, as known, not from the words of the instrument, but from history. But there is no evidence to support such assertion of intention.'

§ 816. It has already been shown that, in ascertaining the intention of those from whom these provisions derive their authority, reference must be had to the pre-existing law, or that which, in their absence, would have continued to determine the relations of the parties in the circumstances therein anticipated. The doctrine that under this clause persons held to service or labor are recognized as property, in distinction from legal persons, and the connected doctrine-that the sum total of the rights and obligations of the bondman and the person to whom his service or labor may be due continue, in the State wherein the fugitive is found, to be such as they were in the State from which he escaped-may be traced, in part, to the vagueness of the terms slaves and slavery, which are popularly used as equivalents for "persons held to service or labor," and the condition of being so held, and, in part, to the incorrectness of forms of speech used to describe the international recognition in one forum of rights and obligations incident to relations which first existed in another.

An instance of this incorrectness of speech occurs in the provision itself which is under consideration. For where, in the absence of this provision, a fugitive would be discharged from the service or labor in which he had been held in another

tinues in the State in which the fugitive is found. See ante, § 723. They are also authority against the doctrine that the fugitive is recognized as property.

"Historically, it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves as property in every State," &c. 16 Peters, 611, ante, p. 461. Judge Wayne said:-"The provision was called [meaning, apparently, in the convention] a guarantee of a right of property in fugitive slaves wherever they might be found in the Union." 16 Peters, 639. Judge Wayne's Opinion is crowded with assertions, unsupported by argument or historical reference, that it was intended in the Constitution to recognize slaves as property and as property only. See ib. 638, 639, 641, 642, 647.

State, the discharge would not be caused by any law or regulation of the State into which he had escaped. He would be discharged by the fact that the law under which he had been held to service or labor had no extent or operation in the State into which he had escaped.

If the fugitive is, in the State into which he may escape, held to any obligations, they can only be such as are created either by this provision or by the local law of that State. So far as this provision does not create an obligation to service, the law of the State operates pro tanto. But that law may not create any such obligation; in which case the only obligation to service is that created by the provision; and as to all former obligations, they are discharged pro tanto by the fact of

escape.

At a time when slavery was a status known to the law of nations, or universal jurisprudence, it had, in each forum, international recognition as the same status, and was, of necessity, absolute or chattel slavery.' When it ceased to be attributable to this law of nations, or universal jurisprudence, the question was no longer of the recognition of a status which, if recognized, was everywhere the same, but of the recognition of certain several rights and correlative obligations of master and slave according to the law of their domicil; and on the principle of comity, so called, these were to be sustained, if not inconsistent with rights and obligations attributed by the local law universally, i. e., to all natural persons.' But, in a forum where the local law by its otherwise universal attribution of rights prevents the judicial recognition of the involuntary obligations of the bondman from another jurisdiction, the only rights which the master can claim are those described in the words of some statute or treaty. It matters not that in the place of domicil the relation between the master and slave included other rights and obligations. Except as the words of such statute or treaty support the owner's rights, the slave is, by the law of the forum, discharged, pro tanto, from his involuntary obligations.

In each State of the Union the status of all

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sumptively determined by the "reserved" powers of the States, until an exception can be proved, against the operation of those powers, from the words of the Constitution of the United States. Even admitting that the persons designated are of the same status in the State wherein found as in the State from which they escaped, and this by law of national authority, yet that law has only personal extent and quasi-international effect as between the States. It applies to persons only as aliens to the State wherein they are found, and, since no persons can be presumed to be aliens,' the local law must be presumed to determine their personal rights until it is proved that they are the persons to whom this national law extends.

There is therefore a presumption of public law against an extensive construction of this provision, and in each State wherein the local law attributes personal freedom universally, as a natural right, the presumption in favor of liberty, a presumption of private law, is against the same construction.'

Hence, though the fugitive continues to owe a debt of service or labor in the State from which he may have escaped, and though that debt can be enforced only by the custody of his person, yet the relation which existed between the fugitive and the person to whom his service or labor is due, under the law of the State from which the fugitive escaped, does not have, under this provision, the recognition which relations attributed to the law of nations, such as those of husband and wife, parent and child, or relations attributed to the customary law of England and America, may have under unwritten private international law. The relation be

'Nelson, J., in re Kaine, 14 Howard, 141:-"Under our system of laws and principles of government, so far as respects personal security and personal freedom, I know of no distinction between the citizen and the alien who has sought an asylum under them." See Opinion of Thatcher, J., in Commonw. v. Griffith, 2 Pick. p. 20, ante p. 553.

2 Ante, 702, 703.

Such as relations of master and apprentice, bail and principal, which may, perhaps, have been internationally recognized as between the States under commonlaw principles, independently of this provision. Respub. v. Goaler of, &c. (1798), Yeates, 265. By the court:-"The passage cited from Vattel applies merely to nations entirely independent on each other. The question is not now before us whether, if bail be entered in a foreign jurisdiction, the manucaptor there can come into this State and legally take the principal. In the relation in which the several States composing the Union stand to each other [compare the doctrine noted ante, p. 369, n. 3], the bail in a suit entered in another State

tween them in the State where the fugitive is found is determined only by the words of this provision, which creates a new right and obligation in the specified circumstances, and the right of the claimant is not the same right which, as owner or master, he had in the State by whose law the fugitive was held to his service.

The debt of service or labor, with the correlative right to have the fugitive delivered up on claim, being secured by this provision, the local law of the State in which he is found operates as to all the rest, pro tanto, determining all the rights and obligations of the parties consistent with delivery of the fugitive on claim. That law may, or may not, recognize any of the former disabilities of the fugitive, and it may attribute to him any right, subordinately to the claim. In a State where involuntary servitude is not recognized by the local law, the slave who has escaped into it is as free as any other inhabitant until such claim is made as is contemplated by this provision. The interpretation of the word shows that claim before public authority is intended, and therefore he cannot be seized and removed, as he might, in the State from which he escaped, have been carried from one county to another.'

A bond status in the place of domicil may consist of a variety of disabilities, besides being obliged as a legal person have a right to seize and take the principal in a sister State, provided it does not interfere with the interests of other persons who have arrested such principal." In Commonw. v. Griffith, 2 Pick. 17, where the question was of the seizure without warrant, but only for the purpose of bringing the fugitive before a magistrate, the counsel for claimant argued that the relation of a slave to his owner may be compared to that between master and apprentice, parent and child, in which no warrant is necessary. This was assuming that the relation was the same under the provision as it had been in the State from which the escape was made.

In an article by Conway Robinson, Esq., of Richmond, Va., in the Southern Literary Messenger, Jan. 7, 1840, vol. VI., p. 100, and also in Vol. 23 Am. Jurist, it is maintained that, "The owner's property being thus secured and protected by the Constitution, he has the same right to take possession of his slave when he finds him in the State to which he escapes, that he would have in the State from which he escaped. As, upon an escape from one county into another, of the same State, the owner may take possession of his slave in the latter county without any warrant or process whatever, so, upon an escape from one State into another of this Union the owner may, in like manner, under the Constitution which governs the Union, take possession of his slave without any warrant or process." This essay was the only juristical essay on the subject, and was well known to all conversant with this branch of jurisprudence, at the date of Prigg's case, 1842, and may have influenced opinions on that occasion.

VOL. II.-37

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