under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor," might, it would seem, have been used to describe an obligation-the obligation of the fugitive. It is admitted by all that the words, "shall be delivered up on claim of the party to whom such service or labor may be due," describe a right-the right of the person to whom the obligation is due. The words which are descriptive of the right are connected, by the conjunction "but," with the words which may have been used to describe an obligation. They therefore may have been used to describe a right and an obligation as correlative, and, on the principle of interpreting words and clauses by their context, there is a presumption that they were so used. Under this view, the extent of "shall not be discharged" is limited by that of "shall be delivered up on claim," not merely because they are part of the context immediately in connection, but because the latter words, in being descriptive of the right, limit the former as descriptive of the obligation.

It would be a very loose interpretation of the terms to say that a claim in pais sufficiently answers the words of the provision, and that when one private person seizes another as his fugitive bondman a "claim" is made, and that such fugitive may be said to have been "delivered up on claim," when the person thus claiming his service has been allowed without molestation to carry him away from the jurisdiction of the State wherein he is found. In Judge Story's argument for the legislation of Congress, it is taken for granted that delivering up on claim is an active duty, either of the national Government or of the State in which the fugitive is found, and that, when a claim is made, some further remedial action is contemplated than that which may be performed by the agency of the claimant himself. The fact that delivering-up is enjoined in connection with a claim, indicates that a proceeding before some organ of public authority is intended, in distinction from such a claim in pais.

§ 813. The Articles of Confederation contained no provi sion in pari materia which might be referred to for the inter

pretation or construction of this provision. The provision in the Articles of the two Confederations of the New England colonies was in force at a time when slavery and indentured servitude was sanctioned by local law in those colonies. So far as a master's right to reclaim his fugitive slave depended upon this compact, it is clear that the claim was to be made before some public officer,' though it is probable that the nonresident master could, in those colonies, also seize and remove the fugitive from his service; as a person in any of the present slaveholding States may now do in like circumstances.

§ 814. The assertion of a right to seize and remove the fugitive from labor is consistent with the doctrine that in this provision slaves are recognized as property-as chattels—not as persons; but that assertion is not altogether dependent on the recognition of this doctrine. Judge Story supposed the slave might be seized as a person, if not as property. He compared the master's right under the provision to the right which a father has, at common law, to the custody of his child, or that of a master over the person of his indentured minor apprentice, by the law of their domicil.*

1 See ante, Vol. I. p. 268, note 5 [b].

16 Peters, 613; ante p. 463. In the case cited ante, p. 561, Judge McLean recognized the authority of Prigg's case for the doctrine of seizure, yet he said in McQuerry's case (5 McLean, 482):-"Under the Constitution and Act of Congress the inquiry is not, strictly speaking, whether the person be a slave or a freeman, but whether he owe service to the claimant. This would be the precise question in the case of an apprentice." This means, if anything, that the fugitive is recognized as a person and not as property. In Jones v. Van Zandt, 2 McLean, 602, he had said:-"The Constitution treats of slaves as persons. The view of Mr. Madison, who thought it wrong to admit in the Constitution the idea that there could be property in men,' seems to have been carried out in that most important instrument. Whether slaves are referred to in it as the basis of representation, as migrating or being imported, or as fugitives from labor, they are spoken of as persons."

In Groves v. Slaughter, 15 Peters, 506, McLean, J., said:-"The Constitution treats slaves as persons. In the 2d section of the 1st Article, which apportions representatives and directs taxes among the States, it provides, 'The numbers shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.' And again, in the 3d section of the 4th Article, it is declared that no person held to service,' &c. By the laws of certain States, slaves are treated as property; and the Constitution of Mississippi prohibits their being brought into that State by citizens of other States for sale or as merchandise. Merchandise is a comprehensive term, and may include every article of traffic, whether foreign or domestic, which is properly embraced by a commercial regulation. But if slaves are considered in some of the States as merchandise, that cannot divest them of the leading and controlling quality of persons, by which they are designated in the Constitution. The character of property is

In later instances it has been held that the fugitive slave is seized and removed as a chattel;' and the right to do this be ing attributed to this provision, it is urged that the Constitution recognizes the person owing service or labor as being a chattel and not a legal person. Some even appear to hold that only as chattels can slaves be recovered under this provision, and that legal persons owing service and labor are not comprehended in its terms."

So far as any argument has been offered to support the assertion that any natural persons are in this provision recognized as chattels, it is, logically speaking, a fallacy, such as has been indicated in the first volume. It is palpable, from the history of slavery in Europe, that persons have been held to service and labor while their legal personality has been recognized."

given them by the local law. This law is respected, and all rights under it are protected by the federal authorities, but the Constitution acts upon slaves as persons, and not as property."

Judge Baldwin, who in this case delivered a dissenting Opinion, in which he held that slaves were to be recognized as merchandise by the States and the national Government, confessed that he stood "alone among the members of the court." He says (ib. 512):-" Other judges consider the Constitution as referring to slaves only as persons, and as property in no other sense than as persons escaping from service; they do not consider them to be recognized as subjects of commerce, either with foreign nations or among the several States; but I cannot acquiesce in this position. In other times, and in another department of this Government, I have expressed my opinion on this subject; I have done it in judgment in another place,-1 Bald. R., 576, &c.,-and feel it a duty to do it here, however unexpectedly the occasion may have arisen; and to speak plainly and explicitly, however unsuited to the spirit of the times, or prevalent opinions anywhere, or by any persons, my views may be. That I may stand alone among the members of this court does not deter me from declaring that I feel bound to consider slaves as property, by the law of the States before the adoption of the Constitution, and from the first settlement of the colonies; that this right of property exists independently of the Constitution, which does not create but recognizes and protects it from violation, by any law or regulation of any State in the cases to which the Constitution applies." His language throughout is singularly strong on this point. The reasons he gives for his decision, he says (ib. 517), “are drawn from those principles on which alone this Government must be sustained; the leading one of which is, that wherever slavery exists by the laws of a State, slaves are prop erty in every constitutional sense, and for every purpose, whether as subjects of taxation, as the basis of representation, as articles of commerce, or fugitives from service." If this should be held in the literal sense, slaves could not form part of the basis of representation nor be delivered up as persons escaping.

See Woodbury, J., in Jones v. Van Zandt, How. 229; ante, p. 498, note Kauffman v. Oliver, 10 Barr, 516; ante, p. 494.

On Judge Taney's inferences in Dred Scott's case, from this interpretation of the clause. See ante, Vol. I., p. 566, note 3.

3

Compare authorities which exclude apprentices from the extent of the provi sion, ante, $ 712.

§ 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."

1 16 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.