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veying away slaves, either with or without their consent, and whether with the intent to transfer them as property to other jurisdictions or with the intent to place them in jurisdictions where involuntary servitude is not lawful; the act being in either case felonious by the law of the slaveholding state, and, in the slaveholding States of the Union, punishable under special statutes. From the abstract of State legislation given in earlier chapters, it appears that there are a variety of acts punishable under the statutes of some States which are rendered possible only by the existence of a slave or disfranchised class, and that, in some non-slaveholding States, the forcible assertion by a person from another State of his claim in respect to a fugitive from service or labor may be declared subject to punishment.
In the extent which this provision may give to such laws it is then directly connected with the subject of personal condition. There are, moreover, certain obvious resemblances between this provision and that which follows it, respecting fugitives from labor, and, in the authorities which must be cited in the examination of the latter, the two provisions have so often been considered analogous that the examination of the first is incidental to that of the second, under the view herein taken.
§ 692. The questions which arise under these provisions, regarded as parts of the private law of the United States, are
1. What rights and obligations of private persons are incident to the relations created by these provisions?
2. By what means are these rights maintained and these obligations enforced?
These questions involve an inquiry into the subjection (to one or the other of the two several possessors of sovereign powers in each State of the Union-the several State or the government of the United States) of the private persons entitled to such rights, or owing such obligations.
According to what has already been stated respecting the international character of these provisions, this inquiry will lead to the adoption for each clause of one of those four constructions (or views derived by construction as distinguished
from interpretation) which have already been presented as possibly applicable to all or most of the provisions of the fourth Article.'
But whichever of these constructions may be put upon either of these two clauses of this Article, it is plain that, in the relations created or maintained by either, certain natural persons are designated as the objects of action or the objects of a right of action. Under any one of these constructions, therefore, the question arises
What persons may be delivered up as fugitives from justice or as fugitives owing service or labor?
The examination of each of these clauses may then be distributed under the two following inquiries :
1. Who, in each, are the persons who are the objects of the rights guaranteed by the provision?
2. By what means are these provisions to be made operative upon private persons?
It is evident that the questions above stated arise immediately on the provisions themselves, independently of any statute passed by Congress or by the States for the purpose of maintaining rights or enforcing obligations supposed to be created by these provisions. But in order to determine either question, it is necessary to refer to the authorities on these points, and these are to be found in the national and State legislation having this object; in the cases which have arisen under such legislation; and in other more or less authoritative discussions of its constitutionality. The various State statutes which have a bearing on these questions have already been enumerated; but their constitutionality, in reference to the national law, has been judicially examined only in connection with the constitutionality of the statutes enacted by Congress.
The first of the questions before stated must therefore be considered in connection with the similar inquiry arising under the laws of Congress. The second question will involve an inquiry into the proper construction of these clauses and the question of the constitutionality of the laws of Congress. In 'Ante, §§ 23, 24.
1 Ante, p. 236.
consequence of the real and supposed analogies between the two provisions, which have been alluded to, it will be convenient to consider the first question in its application to each provision, before taking up the second question.
§ 693. The first of these questions is to be considered in the remainder of this chapter. As particularly directed to the first of these constitutional provisions, it is
Who are the persons who may be the objects of the demand and delivery contemplated by the provision and by the first and second sections of the act of Congress of 1793, which are the only enactment of the national legislature on this subject?1
This will be determinable in part by the force of the words "treason, felony, or other crime." In a demand under this clause, the law of the State in which the act charged was committed must of course have characterized it as treason, felony, or other crime. If the law of the State into which the person demanded may have fled should have given the same character to such act, it may be presumed that the correspondence of the demand with the provision, in that requisite, will not be matter of dispute between the two States; even though the act charged should be punishable by the law of no other State. But it is evident that the act charged as such, by the law of the State wherein it was committed, may be one which, in the State into which the person claimed has fled, is not known as an act subject to legal penalties. In such case the question must occur by what legal standard is the extent of these words in the provision and the character of the act charged as "treason, felony, or other crime," to be determined? Some disagreement on this question would seem inevitable between States of this Union, when one may by punitory laws propose to secure a condition of bondage or civil disability unknown to the law of the other, and when one may ascribe liberty of condition to all and protect its enjoyment by all within its jurisdiction without reference to rights claimed, by another State, as belonging under private international law to its citizens in respect to their escaped slaves.
1 See the act noted post, in the beginning of Ch. XXVIII.
694. There are a number of decisions in cases involving a judicial consideration of the force of these terms. But there has been, I believe, no case of this kind, wherein the act charged as being within the scope of these words was one whose character would thus be differently regarded under the punitory laws of States thus differing in their respective laws of personal condition, earlier than the recent case on petition for a mandamus in the Supreme Court of the United States, December Term, 1860, entitled-Ex parte: in the matter of the Commonwealth of Kentucky, one of the United States of America, by Beriah Magoffin, Governor, and the Executive Authority thereof, Petitioner, v. William Dennison, Governor of the State of Ohio. The case is not as yet reported. The extracts here given from the opinion of the court, pronounced by Chief Justice Taney, are from a printed copy received from the clerk's office. In the opinion no mention is made of the circumstances on which the case arose. From the documents in the Governor's special message to the Legislature of Ohio, of Feb. 12, 1861, it appears that Willis Lago was claimed by the Governor of Kentucky, May 31, 1860, as charged with "the crime of assisting slaves to escape.""
On the question, whether the act charged was a crime within the meaning of the Constitution, the Chief Justice says:"Looking to the language of the clause, it is difficult to comprehend how any doubt could have arisen as to its meaning and construction. The words 'treason, felony, or other crime,' in their plain and obvious import, as well as in their legal and technical sense, embrace every act forbidden and made punishable by a law of the State. The word 'crime' of itself includes every offence, from the highest to the lowest, in the grade of offences, and includes what are called 'misdemeanors,' as well as treason and felony. (4 Bl. Com., 5, 6, and note 3, Wendell's edition.)
In the indictment, the grand jury "accuse Willis Lago, a free man of color, of the crime of assisting slaves to escape, &c., committed as follows, viz.: The said Willis Lago, free man of color, on the 4th day of October, 1859, in the county aforesaid, not having lawful claim, and not having any color of claim thereto, did seduce and entice Charlotte, a slave, the property of C. W. Nuckols, to leave her owner and possessor, and did aid and assist the said slave in an attempt to make her escape from her said owner and possessor, against the peace and dignity of the Commonwealth of Kentucky.”
"But as the word crime would have included treason and felony, without specially mentioning those offences, it seems to be supposed that the natural and legal import of the word, by associating it with those offences, must be restricted and confined to offences already known to the common law and to the usage of nations, and regarded as offences in every civilized community, and that they do not extend to acts made offences by local statutes growing out of local circumstances, nor to offences against ordinary police regulations. This is one of the grounds upon which the governor of Ohio refused to deliver Lago, under the advice of the attorney general of that State.
"But this inference is founded upon an obvious mistake as to the purposes for which the words 'treason and felony' were introduced. They were introduced for the purpose of guarding against any' restriction of the word 'crime,' and to prevent this provision from being construed by the rules and usages of independent nations in compacts for delivering up fugitives from justice. According to these usages, even where they admitted the obligation to deliver the fugitive, persons who fled on account of political offences were almost always excepted, and the nation upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime, and the character of the offence. The policy of different nations in this respect, with the opinions of eminent writers upon public law, are collected in Wheaton on the Law of Nations, 171; Fœlix, 312; and Martin, Vergè's edition, 182. And the English government, from which we have borrowed our general system of law and jurisprudence, has always refused to deliver up political offenders who had sought an asylum within its dominions. And as the States of
1 The mention of treason and felony makes it obvious that the provision extends to some cases not within the international rule of extradition. But does it appear from this that there is no restriction on the word crime? or that it, by itself, is not to be interpreted by that rule? Does not the specification of treason and felony, though coming under the general term crime, warrant the inference (by expressio unius, etc.) that, by itself, it is to be interpreted by that rule which excludes political offences, and in which these terms of English law are not recognized? How, in this argument, which is that referred to by the Chief Justice in the preceding paragraph, is there any "mistake as to the purposes for which the words treason and felony were introduced ?"