vision this intention of the authors of the Constitution is discovered, the argument, if any, must be founded on something like a distinction between interpretation and construction, and amounts to this: While the fair interpretation of the terms of the guarantee in the Amendment requires the verdict of a jury to sanction such delivery, yet, by construction of the provision, it may be known that an exception is here intended. If this is the argument, the construction resorted to appears to be that under which the provision is regarded as a compact or treaty between the States, and, it being assumed that the State has therein given a guarantee to the other States, it is argued that this guarantee, operating as public law, must override all other guarantees operating as private law. If this were the true construction, it might fairly be urged that this guarantee given by the State to other States must be subject to the preexisting guarantees which it had given to private persons. And if (on the supposition that a guarantee given in the Constitution of the United States must be executed irrespectively of guarantees in State constitutions) this argument might be admitted to justify an extradition by the State's authority in disregard of the State's bill of rights, yet the Constitution of the United States itself contains similar guarantees of the rights of private persons; and all parts of the same instrument must be construed in harmony. Such guarantees in the Constitution are expressly intended to restrain all exercise of powers conferred by national authority, and should apply here; even if it could be maintained that Congress or the national Government are authorized to act, instead of the States, in fulfilling the duty which arises under this construction (according to the theory in the second of the four constructions exhibited in a former chapter), or if the duty of delivery is imposed by the provision upon the national Government, according to the theory connected with the third construction.

It has been said by some that the words "on claim," fairly interpreted, are enough to show that a summary proceeding was intended. No argument in support of this, from any

1 See Life of Judge Beardsley, 543; counsel in 14 Wend. 519; Conway Robinson's Essay, 6 South. Lit. 100.

previous usus loquendi, has been presented. Such interpretation is only, in fact, another form of stating that construction of the provision which has just been indicated; being equivalent to saying that an international requisition or demand for rendition, made upon the State as a political person, in distinction from a controversy between private persons, results from the character of the provision. The term claim and the term demand used in the clause relating to fugitives from justice are each primarily used to indicate the legal pursuit of private rights.

§ 937. 3. In the third argument-that these guarantees do not apply to persons claimed as fugitives owing service and labor in some State from which they have escaped, because slaves are not, or were not, parties to the Constitution-there is more than one fallacy.

In the first place, it is not as party to the Constitution that the guarantees contained in it apply in the case of any private person. The Constitution is either the act of one party alone, the integral people of the United States, or of as many parties as there are States; the integral people of each State being in that view a party. The idea that any natural person, in his individual capacity, is or was a party, is a relic of the socialcompact theory. If any individual members of society may be discriminated as parties in the genesis of the State and national Constitutions, they must be those who held the elective franchise; and it was never pretended that these guarantees applied to those only who are "freemen" in that sense of the word, even under State constitutions wherein the phraseology is, "no freeman shall be disseized," &c. These guarantees have been declared by some one or more constituent parties (of whom it is enough to know that he or they held the supreme power) for the benefit of certain recipients, who, in that sense, may be called parties; and the argument may be, that persons claimed under this provision are excluded from the number of these recipients, because slaves are not the recipients. It may be admitted that these guarantees do not apply to slaves when introduced into the constitution of a State wherein slavery exists; that they are to be understood as-no freeman, nullus

liber homo, shall be disseized, &c.' But these guarantees in the national Constitution are against the powers of the national Government, even when employed in enforcing the national law; and the national law, of itself, knows nothing of the status of persons as bond or free; it recognizes persons according to the status given them in the State where it finds them. In the eye of the national law, the status of the man who has escaped from a State wherein he was a slave, and who is in a non-slaveholding State, must be given by the law of the latter until the contrary is proved; and how it shall be proved, is to be determined by these guarantees of the Constitution which apply to him as well as to those not liable to such claim. When the question is, how shall a man be proved to owe service and labor, to have escaped, &c., it is absurd to say it is proved by assuming him to be a slave.

It may be objected that these guarantees do not necessarily have a universal personal extent; that, as a personal distinction was recognized in the extent of these guarantees at common law in the several colonies, and that, as it is now recognized in determining the quasi-international recognition of citizens and their privileges and immunities under another clause of the fourth Article,' so it must here be applied. The answer here, also, is, that the extent of such guarantee depends on the law of the State, and that, as the national Government recognizes slaves in the slave States as not protected by such guarantee, so, in a State attributing personal freedom to all or any, it must recognize the guarantee as extending to such; and that to except a person from it, because claimed not to be protected by it, when the question turns upon his being a person included under the provision, is absurd.

In the denial of the application of these guarantees there is either a fallacy in the reasoning, or the argument is incidental to the doctrine upon which the doctrine of seizure and removal depends, that the effect of the provision, independently of the

2

'Williams, Ch. J., in Jackson v. Bullock, 12 Conn. 43.

Ante, § 650.

That negroes do not participate in the political franchises held by white persons of the same age, sex, and property qualification, is no reason for holding that they do not participate in the benefits of a State bill of rights. See Ely v. Thompson, ante, p. 11.

action of Congress, is to make the law of status of the State from which the slave escapes operative in the State into which he goes, thus continuing all his liabilities and all correlative rights of his owner under sanction of the Constitution operating as private law. This doctrine has already been examined. But if it were correct, the question occurs-how is one to be known to be thus affected by the law of some State other than that which is the forum of jurisdiction? The argument proves too much; if good for anything, the conclusion is, that any man may be seized as a fugitive slave and removed, and that the State has no power to protect any of its citizens against such seizure.'

§ 938. 4. The fourth argument, which is that principally relied on, is the same as the fourth in the series, already noticed, of arguments against the objection that the commissioners exercise judicial power. The observations already made in answer to that argument' will apply here also. The argument that in the constitutional provision a case of extradition is contemplated, as distinguished from a suit at common law, will be considered in the sections immediately following, wherein the proper extent of these terms is examined.

Besides, if the judge's or commissioner's decision were, by the law of Congress, made preliminary to ulterior proceedings in the State from which the person claimed is said to have escaped, the question arises-what is a trial by jury, in view of the Constitution of the United States? Without minute discussion it may be affirmed to mean jury trial as known in the colonies and States in the generality of cases, and to the selection and impanneling of juries in ordinary suits at common law. But it is evident that trial by jury may have a very

The judgment of the Supreme Court of the United States, in Prigg's case, reversed the judgment of the Pennsylvania State Court against him, on the ground that he had a legal right to do what the State court held he might be punished under the State law for doing. But in the same judgment the Supreme Court declared that State law, which applied equally to cases where there was no such right to remove a person, to be unconstitutional and void. (Ante, p. 479.) This was, actually, the doctrine maintained by Judge Story in this case,-the States have no power to punish the forcible removal or kidnapping of persons within their jurisdictions, whether the persons so removed or kidnapped are or are not fugitive slaves. The same thing is asserted by Judge Crawford in Booth's case, in the extract given ante, p. 715, note.

different meaning in the jurisprudence of the different States; and it will appear, from a cursory examination of the statute law of the slave States, that a trial of the issue of freedom or slavery by jury in some of those States must be a very different thing from jury trial of the issue under the national authority with the ancient common-law sanctions.

5. The argument, from a supposed necessity, being equally applicable against other objections taken against the law of Congress, will be considered hereinafter, with those objections.

§ 939. Admitting the weight of judicial authority to be affirmative of the validity of the law of Congress, though not providing for a trial by jury, it may yet, in accordance with the method herein pursued, be inquired how the question is to be regarded in the light of general principles applied to the construction and interpretation of these clauses of the Constitution.

If that view of the nature and operation of the provision be the correct one, according to which it acts as private law, creating cases falling within the judicial power of the United States, and if, on the grounds hereinbefore presented, the right of the claimant is not one which he may himself make perfect by seizing and removing the slave or bondman,' then, in being a demand against a legal person, whose status is presumptively determined by the local law of the State in which he is claimed for a debt of personal service, such claim may properly be called a suit. For a suit, in ordinary speech, is equivalent to a legal claim or demand of one or more private persons against one or more other private persons, to be decided by some instrument of the judicial function of sovereign power. Such claim of a master seems to be within the description of a suit which is given by Marshall, Ch. J., in Cohens v. Virginia (1821), in reference to the use of the word in the eleventh Article of the Amendments."

2

1 Ante, pp. 569-580.

6 Wheaton, 407, Marshall, C. J., delivering the opinion of the court: "What is a suit? We understand it to be the prosecution or pursuit of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, the being put in possession of that right whereof the party injured is deprived.' The instruments whereby this remedy is obtained are a diversity

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