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in the instrument by any contemporary commentators. There is no evidence that this construction was advanced in Congress when they proposed to legislate.

§ 795. On the principle of the continuation of laws, the international or quasi-international law which had before obtained between the States would have continued to be recognized in the United States, so far as it might be consistent with the provisions of whatever constitution of government should have been adopted. It seems allowable to refer to this preexisting international or quasi-international law in construing the constitutional provisions which create new rules in cases formerly determined by that law.'

It may have been, before the adoption of the Constitution, that the delivering up of fugitives from justice and of fugitives from labor was customarily fulfilled under this international law, while such delivery may have depended solely on the several will of the State in which they should be found. The international law under such a state of things would have been binding on the States only as a law in the imperfect sense. It would have been a rule for them of positive morality," which became positive law only by being identified as to its authority with the local law of the State. But from this fact alone it could not be argued that these clauses have the same character, that character which corresponds with the first construction. For the fact of their having been placed in the Constitution shows that they have a totally different legal character, and that, in the relations to which they apply, the old customary international law is excluded by a rule having a different authority; though that law, as it formerly obtained, might have produced like effects on private persons.

Still, if it cannot be determined from the words of the Con

the master and slave, creating rights to be enforced in courts of law. Strangely enough this remark of Mr. Sherman has often been cited to show that he was opposed to recognizing a property in slaves.

The bill, at first, was for the rendition of fugitives from justice only, to which, when Congress had agreed on it, were added the clauses relating to fugitives from labor; and the bill appears to have passed without much discussion. See Wolcott, arg., 9 Ohio, 139; Sutliff, J., ib. 255; Johnson, arg., 16 Peters, 597. It may be observed, too, that Congress, at that period, assumed the possession of legislative power to an extent which has long been abandoned. See Sutliff, J., 9 Ohio, 257.

Ante, p. 421.
VOL. II.-35

Ante, § 11.

stitution whether the law contained in these clauses is a law for the States as political persons, or a law for private persons, it may be just to infer that the new rule contained in them corresponds to the pre-existing law in its mode of operation, though it rests on a different authority. It may be argued that, if the delivery of fugitives from justice and fugitives from labor was made only by the State Government, acting in the matter of such delivery for the State as a political person, the clauses were intended to act on the States as its subjects; but that, if the delivery took place by persons administering the private law of the State, the clauses were intended to act as a private law.

§ 796. And, first, as to the pre-existing law respecting fugitives from justice.

From authorities cited in a former chapter, it seems that, in each several jurisdiction of the British Empire, persons who had committed atrocious crimes in other parts of the same empire could lawfully be seized and surrendered for trial; though the law on the subject must have been obscure when the act of 13 Geo. 3, c. 31, was enacted.' The question which is here of importance is, whether such surrender was carried out by ministerial or judicial officers applying ordinary positive law, or was the act of the supreme political authority in such jurisdiction, proposing to fulfill a duty of the state as a political person, a duty arising under public international law.

With reference to the comparative extent of their laws, and the territorial jurisdiction of their several courts, the American colonies were like independent national jurisdictions, and the judgment and process of a colonial court had no intrinsic force. beyond the limits of the colony. There was apparently, in this respect, no distinction between matters civil and criminal. As to each, the king was, theoretically, the so-called fountain of justice, or the head of the judiciary. And it would appear that, even after the legislative unions, England, Scotland, and

1 Ante, p. 396, note.

3

Story's Comm. § 184.

2 Story's Comm. § 1307. The colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial

assemblies under their charters."

Ireland were in like manner distinct jurisdictions,' in each of which the criminal or punitory law had a distinct territorial extent, and was applied by administrative and judicial officers whose authority was limited according to that extent. But since, in the theory of public municipal law, all offences or public wrongs were committed against the king's peace or against his crown and dignity, and the king, as prosecutor, was supposed to be everywhere present, the arrest of a person charged with the commission of crime in any one colony or several jurisdiction of the British empire might have been considered equally legal in any part of the king's dominions. The final extradition or removal of the accused would apparently have been beyond the functions of any judge or magistrate, and may have been accomplished by some government-warrant; but it seems that the arrest in such cases was justified by private municipal law, and might have been made by magistrates empowered for ordinary commitments, independently of any special authority from a department of the government having charge of the external relations of the state.

3

In the English cases, which were noted in an earlier chapter, and in similar cases occurring in the colonies, the sovereign under whose authority the arrest and quasi-extradition of the accused person was made was the same sovereign whose law had been violated in the place where the crime had been committed. The whole proceeding was therefore more like an ordinary arrest and commitment than such arrest and quasi-extradition in one of the States can be under the present division of sovereign power in the United States. The sovereign power of the State wherein the crime was committed is totally distinct from that of the State into which the criminal may have escaped. Yet the constitutional provision emanates from a possessor of sovereign powers who holds them in all the States, i. e., the integral people of the United States, and it may be fair to suppose an intention to continue, substantially, the old law between the colonies,

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Molloy, de Jure Mar., B. iii. c. 2; Commonw. v. Simmonds, 5 Binney, 624. 21 Bl. Comm. 268, 270.

3 See ante, on pp. 395–397.

and to give the provision such a construction as will assimilate it in character to the former law--a law acting directly on the fugitive from justice, and not on the States as political persons.

The compact of 1643 between the New England colonies was between parties politically identified with an influential proportion of the States originally united under the present Constitution, and the eighth article of that compact may be referred to to construe this public act in pari materia. The surrender of fugitive criminals was by that article placed under the administration of the ordinary magistrates, or administered as part of ordinary criminal law.

The Articles of Confederation contain a clause the wording of which is almost the same as that of the constitutional provision. Under that federative organization, the provisions concerning inter-State relations were made to take effect on the private persons within their respective territory only by the several State or its Government. The provision referred to was not effectual then for the arrest and extradition of a fugitive from justice, without some autonomic action on the part of the State in the fulfillment of its obligation under that compact. But that organization, from its want of correspondence with the essential existence of the people of the United States as the possessors of national sovereignty, was thrown aside by them for one recognizing that uneradicated public law which, before the Revolution, had integrally combined all the English colonies. The temporary existence of an organization founded on the recognition of one only of the antecedent elements of political existence, i. e., the colonial possession in severalty of a portion of the powers of sovereignty, cannot be held to destroy the value of the former inter-colonial usage as a guide in the construction of this clause.

Even if the fact, that the local law against which the person is charged to have offended proceeds from a possessor of sovereign power entirely distinct from the possessor of sovereign power in the State into which he has escaped, is taken to have destroyed this application of the colonial law, yet the construction here exhibited is that which is most in harmony

1

Ante, p. 3.

2

Ante, § 346.

with the rest of the Constitution.

There appears to be no rea

son for saying that these clauses are exceptional to the Constitution as a whole, and that the rule contained in them must be a rule for the States as political persons acting on them as its subjects. For aught that appears in the Constitution, the right of the State, or of the Executive of the State from which the person charged fled to have the custody of his body, on demand, is correlative to an obligation on the part of the person so charged, in a legal relation between them, and no autonomic action on the part of the State into which he fled is required of it, except as it may choose to exercise a concurrent jurisdiction in applying the law which creates that relation.

797. It is to be noticed here that the demand and delivery provided for by this clause is a right of action belonging to a public and not to a private person. It is a State of the Union which has the rights, in a relation established by the Constitution between it and the persons who are the objects of the demand and delivery. And since, under a republican form of government, the State may be represented by various persons exercising different functions of sovereign power under its public law, it was necessary, under either construction of the clause, to designate who should be recognized as the representative of the State claiming its right. But it is not necessary to infer from this alone that the corresponding obligation. created by the clause is a duty of the State in which the fugitive from justice is found, as a political person, or of the State Government or its executive organ.'

§ 798. The pre-existing law affecting the delivery of fugitives from labor is next to be referred to as an index to the construction of the second of these clauses.

The history of this topic of international law during the colonial period has already been fully given in former chapters of

In Kentucky. Dennison, ante, pp. 427, 428, Judge Taney says, "It is plain," since the "confederation was only a league," and "had no officer," &c., that the demand was to be made on the Executive, and "could be made on no other department or officer." (But certainly a State might have provided some other person to represent it in this relation.) Then the Judge argues that the framers of the Constitution, while engaged in establishing a general Government having officers, &c., could not have contemplated any one but the State Executive as the person on whom the demand should be made. Such reasoning may be unanswerable; but can it be called reasoning?

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