the 3d sec. of the act of 1793]. Judge Washington refused the certificate, on the ground that in this instance there was no "escaping" within the meaning of the Constitution, and reaffirmed the doctrine of the last case, adding, "The slave in this case having been voluntarily brought by his master into this State, I have no cognizance of this case so far as respects this application; and the master must abide by the laws of this State so far as they affect his rights. If the man claimed as a slave be not entitled to his freedom under the laws of this State, the master must pursue such remedy for his recovery as the laws of the State may have provided for him.”

In Commonw. v. Aves (1836), 18 Pick. 219, Chief Justice Shaw said, "that, as by the general law of this Commonwealth slavery cannot exist and the rights and powers of slave-owners cannot be exercised therein, the effect of this provision in the Constitution and laws of the United States is to limit and restrain this general rule, so far as it is done by the plain meaning and obvious intent and import of the language used and no further. The Constitution and law manifestly refer to the case of a slave escaping from a State where he owes service or labor into another State or Territory. He is termed a fugitive from labor; the proof to be made is that he owed service or labor, under the laws of the State or Territory from which he fled, and the authority given is to remove such fugitive to the State from which he fled. This language can, by no reasonable construction, be applied to the case of a slave who has not fled from the State, but who has been brought into this State by his master. The same conclusion will result from a consideration of the well known circumstances under which the Constitution was formed." And on page 221, the judge says, that, it is to be presumed that the parties to the constitution "selected terms intended to express their exact and their whole meaning; and it would be a departure from the purpose and spirit of the compact to put any other construction upon it than that to be derived from the plain and natural import of the language used."

The same doctrine was reaffirmed by the same court, in Commonwealth v. Taylor (1841), 4 Month. L. Rep, 274, where the court remanded the person whose right to freedom was in

question, as a minor, to the custody of a guardian appointed by the court.

There are many other cases which might be cited as supporting the same interpretation. Among these the recent cases, Anderson v. Poindexter, 6 Ohio, 622, and The People v. Lemmon, in 20 N. Y. Rep. 562, may be particularly referred to, since they contain very full citations of the older cases.

$721. From the very nature of the whole provision, the persons who are immediately affected by it are spoken of as passing from the jurisdiction of a State, by whose laws another person holds them to service or labor, into some other State, the law of which last may or may not be similar to that of the first. The word escaping has a distinctive meaning in reference to that service or labor which is mentioned in this provision, and implies that the person held to service, by his own volition, or rather without the knowledge and consent of the master or owner, passes beyond the control of the local law which creates the relation between them. It is only persons who have thus escaped from the territorial jurisdiction of the law of the State of their domicil, by which they are held to service or labor, who, under this provision, would be excepted in another State from the ordinary effect of a change of jurisdiction. In a State wherein the local law does not sanction such holding of a person to service or labor as is here referred to, there cannot, in fact, be any escape from the holding of a master, as there is there no law making that service due. If, therefore, the servant or slave enters such a State in any other manner than by escaping into that State from the State which upholds his servitude, he is subject only to the law of that particular State-the law (internal and international) resting upon the several will of the local power or sovereignty. Slaves entering with the consent of their owners into another State cannot be "delivered up" to any party under this provision. Whether their former condition is to be maintained within such State, or not, will depend upon private international law as therein received or allowed by the supreme source of the local law, that international rule which, when ascertained, has the authority of positive law over all persons within the jurisdic

tion of the State, but which is not law in the strict sense, in reference to the political persons or people who, by public law, constitute the political State, or are invested with the sovereign powers belonging to one of the States of the United States, or "the People" thereof, and which, in its extent and authority, is identified with the several or local law of the State.'

§ 722. The question of the extent of this provision arises in connection with a variety of modifying circumstances.

In State v. Hoppess (1845), 2 Western Law Journal, 279, it was held that a person held to service or labor under the laws of Arkansas, escaping from a boat on the Ohio River, within low-water mark on the Ohio side, and fastened to the shore, on which boat his master is returning to his residence in Virginia, is within the meaning of the provision and acts of Congress. Judge Read held that it was a consequence of the Virginia deed of cession and her "compact for setting off Kentucky as a State," by which she declared "that her jurisdiction over the river should be common or concurrent to the States bordering upon it;" that "a master navigating the river, whilst on the water, is within the jurisdiction of Virginia or Kentucky for the purpose of retaining the right to his slave."

723. In Commonwealth v. Halloway, 2 Serg. & Rawle, 305, in which "a habeas corpus having been directed to the keeper of the prison of the city and county of Philadelphia, commanding him to produce the body of Eliza, a negro child, together with the cause of her detention, he returned that he held her by virtue of a warrant of commitment issued by Samuel Badger, Esq., an associate judge of the Court of Common Pleas, who had committed her as being the daughter of Mary, a negro woman, the slave of James Corse, of Maryland, and as such the slave of the said James.' On the hearing, it ap

1 In any of the cases of claim stated ante, p. 358, the only presumption of law that can be made must be given by the law of the forum of jurisdiction. In the non-slaveholding State the presumption is in favor of liberty; and on the general rule of interpretation, the provision should be interpreted strictly. Ante, § 702.

See the remark on a concurrent jurisdiction under such circumstances, recognized in international law; ante, Vol. I. p. 353, n. 2. But could an owner from some State other than Virginia or Kentucky have, under these circumstances, elected to be under the jurisdiction of Virginia or Kentucky?

peared that the mother had absconded from her master and come to Philadelphia, where, after she had resided for about two years, the child was born. She was after apprehended in Philadelphia as the slave of Corse, and delivered to him as such by a magistrate, after an examination of the case."

Tilghman, Ch. J., said (p. 307):—"The case of the absconding slave is provided for without mention of the issue." Yates, J. (p. 308):-"It cannot be supposed for a moment that the child in question, who was not in existence when her mother ran away, had escaped or was a fugitive. Her case, therefore, is not embraced either by the Constitution of the United States or by the act of Congress." This case was followed in Commonwealth v. Alberti, 2 Parsons' Select Cases, 495.

In Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 557, the plaintiff had seized and removed a negro woman and her children, one of whom was born in Pennsylvania more than one year after the mother had escaped from Maryland. The Supreme Court of the United States affirmed the right of the plaintiff to remove these persons, without noticing this circumstance.'

In Fields v. Walker (1853), 23 Alabama, 155, it was held that the children born in Alabama of a slave woman who had escaped from another State could not be claimed and delivered up with her under this provision and the act of Congress, though possession might be taken under the State law; and ib. 166, Union Bank v. Benham, ib. 142, is cited as sustaining the same doctrine.

It has been held, by authorities which will hereinafter be fully considered, that the effect of this provision is to continue, in the State into which he or she may have fled, the status of the slave and the rights of the owner, as they were known to the law of the State in which the escaped slave had been

The question appears to have been raised, whether the issue was born free under the State law, abolishing slavery, of March 1, 1780, and, in view of the exception in the 11th section of that act, Tilghman, J., said:-"It appears to me, therefore, that under the act of assembly this child is entitled to freedom. I desire it, however, to be understood, that it is not intended, to intimate any opinion on * * nor on the case of a child with which a slave absconding from another State should be pregnant at the time when she came into this State." Compare comment on this case in 1 Cobb on Slavery, p. 79.

2

* De minimis non curat lex-is Judge Sutliff's suggestion; 9 Ohio, 263.

held to service or labor. Assuming the correctness of this view, it might well be urged that the law of the condition of the issue was incidental to that of the condition of the mother, and that, as increase of the property, the issue belonged to the owner of the slave mother, by the law of the State from which she escaped, extended under this provision.

It will hereinafter be argued that the provision will not bear this construction; that the integral status of the slave is not so continued; that the right of the master is, solely, to have delivery made on a claim, and that the only correlative obligation of the escaped slave, under this provision, is to return to the State from which he or she escaped. In this view there is nothing in this clause to determine the condition of the issue, and it is therefore to be ascertained by that law which in its authority and territorial extent is local or State law.

§ 724. In Glen v. Hodges (1812), 9 Johns. 67, after the slave had been taken by the plaintiff, the defendant took out an attachment against the slave for debt, on which he was arrested and taken out of the plaintiff's possession. The court said the question is, "Whether the defendant is not responsible in trespass for rescuing the slave, though he did it under the form and color of an attachment for a debt alleged to have been contracted with him by the slave. The negro, being a slave, was incapable of contracting so as to impair the right of his master to reclaim him. A contrary doctrine would be intolerable, so far as it respects the security of the owner's right, and would go to defeat the provision altogether. The defendant, therefore, contracted with the negro and sued out the attachment at his peril. It was a fraud upon the master's right. The fact being established that the negro was a fugitive slave, the attachment was no justification to the party who caused it to be sued out. This must have been so adjudged, if the point had been in Vermont, because the entering into a contract with such slave and the endeavor to hold him under that contract contravened the law of the United States, which protects the master or owner of fugitive slaves in all his rights as such owner. If the slave had committed any public offence in Vermont, and had been detained under the authority of the gov