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to render service or labor on claim being made before public authority. The fugitive from labor may be either a chattel or a legal person by the laws of the State in which he has been held in bondage. The provision guards only his obligation, as a legal person, to respond, on claim, against the discharging effect which follows on the fact of his escape from that. State. To that end only it takes up and gives a personal extent to the law of that State. In all other respects he is discharged pro tanto from the effects of that law, and whether he will be liable to any other obligation of his former condition will depend on the private international law of the forum, that law which in its authority is identified with the local law of the State.

§817. Having said, on page 613 of the report, that, "under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence," Judge Story adds:"In this sense and to this extent this clause of the Constitution may properly be said to execute itself."

Positive law is always, of necessity, producing between the persons upon whom it operates, relations in respect to persons and in respect to things. In this respect it may be said to be always executing itself. But rights and duties are manifested in some action, and, so far as they involve the action of some private person, the law may be said to be unexecuted until that action has been performed. Whenever the action is performed, by the person to whom it is permitted or of whom it is required, without the intervention of remedial process of law applied by public authority, the law giving the right or requiring the duty may still more appropriately be said to execute itself. But whether the action may so be performed, without such intervention, depends firstly -upon the nature of the object of the action,' whether a person or a thing; and, secondly-if the object is a person, upon the rights which may be attributed to (the capacity of) that person; and, if a thing, upon the rights which may be attributed to other persons (other than the actor) in respect to it.

1 Ante, § 21.

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Under the fourth construction, the provision operates as positive law, establishes a relation between private persons, and," to that extent, executes itself. If the provision declared that the escaped slave should, in the State in which he is found, be regarded as a chattel or thing, which can only be the object of the rights of legal persons, the necessary consequence might be that he could be seized and carried away by the claimant, unless rights of other persons in respect to the same chattel should exist to delay possession. If the provision declared that the fugitive bondman, as legal person, should, in the State in which he is found, be in the same relation towards the owner as before in the State from which he fled, the same absolute right of possession would be vested in the owner which he had in the State of domicil, and, the slave not deriving any right from the local law of the State in which he is found, the master might seize him and acquire legal possession. The continued possession could be conteșted only as the parent's, master's, or manucaptor's custody, of a minor child, an apprentice, or the bail, might be under the local law; and in such case the provision might properly be said to execute itself; the action involved in the right of the master, as recognized by the provision, being then lawfully performed without intervention of remedial coercion by public authority.

But the provision does not know the fugitive as a chattel, and the law of the State in which he is found may attribute to him any right whatever, subject only to claim to be made by the master for his person to fulfill his debt of service or labor, the just extent of which disability has been considered. Therefore, in a State wherein, but for this provision, he would have been "discharged from such service or labor," the escaped slave is a legal person, and has a right to personal liberty given him by the local law, which he does not lose until such claim has been made. Whether, under the provision, he may be arrested without warrant for the purpose of being taken before public authority to answer to the claim, is a different question; but, in such a State, the local bill of rights extends to him as well as another, at least so far as to make his seizure and removal by the owner illegal. It cannot be

done, in such a State, "without any breach of the peace or illegal violence," because the law of the State declares it to be illegal violence and a breach of the peace, and therein the provision does not restrict the local law.'

§ 818. As has already been noticed,' the Supreme Court, in Kentucky v. Dennison, cannot be supposed to base the legislation of Congress respecting fugitives from justice on the theory of carrying into execution the judicial power of the United States in a "case" arising under the provision in the Constitution for the delivery of such persons on demand. Indeed, the portion of the Opinion delivered by the Chief Justice, which vindicates the legislation of 1793 on that subject, does not correspond with any justification previously advanced for the action of Congress in reference either to this provision or that relating to fugitives from labor. Judge Taney there speaks of the legislation of 1793 in respect to fugitives from justice as founded on the power specially granted in the first section of the Fourth Article; holding that Congress had thereby (in the language of that section) prescribed the manner in which a judicial proceeding of the State from which the fugitive from justice had escaped, to which full faith and credit was to be given in the State into which he had fled, should be proved in the latter, and the effect thereof. Indeed the Chief Justice says that "without doubt," this provision respecting fugitives from justice "which requires official communications between States and the authentication of official documents, was in the minds of the framers of the Constitution, and had its influence in inducing them to give this power [the power conferred by the 1st sec. of the 4th Art.] to Congress.""

This theory for the legislation of Congress corresponds better with the fourth than with any other of the constructions of these provisions which have been indicated, inasmuch as the

Under this view of the nature of the master's right under the provision, it is not necessary to inquire whether such seizure and removal will not be contrary to those amendments of the Constitution of the U. S. which are in the nature of a bill of rights. The effect of those amendments, as limiting all that may be done under color of the authority of the U. S. for carrying the provision into effect, will be considered in another place.

2

Ante, p. 434, note.

Ante, p. 430.

judicial power of the State, from whose justice the person charged has fled, is supposed to operate before the power of Congress can be brought into action. If it does so operate it must be in applying some law. If the law applied is only the law of the State in which the crime was committed, and if the judicial proceeding of that State, being proved, and having taken effect, or having received full faith and credit under the first section of the fourth Article, is sufficient for the purpose of delivering up the fugitive from justice, of what use, it may be asked, is the provision for that delivery in the second section? It would seem that the law applied could be no other than a law of national authority and extent, contained in the provision itself, acting on the fugitive as its subject, conformably with the fourth construction. But though the State courts may apply such a law in the exercise of the concurrent judicial power of the State, it is evident that this power can itself extend only to persons within the jurisdiction of the State. Besides, the return of a criminal to the State. from which he had fled could have been required only by a law of national authority and extent: it was not within the "original" powers of the demanding State "previous to the Constitution," and therefore it is not, according to the greater number of authorities, within the concurrent judicial power of

that State.'

§ 819. Under this view of the legislative power of Congress in reference to this matter, an effect is attributed to this provision very similar to that which, in asserting the right to seize and remove a fugitive slave, is attributed to the other provision. As, in that instance, the law of personal condition of the State from which the fugitive from service escaped is supposed to operate in another State, so, here, the criminal law of the State, from which the person charged fled is supposed to operate in another State, so that while it is judicially administered in the former State it may be ministerially executed in the latter. It would be perfectly consistent with this view if some other person, whether an officer sent by the Executive of the demandant State, or some United States Commissioner, or a

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United States Marshal, should be indicated by Congress as the person to make the delivery: for, as the provision does not indicate the person who shall make the delivery, it would appear, notwithstanding the argument of the Chief Justice that the Governor is the person contemplated,' that any person who might be empowered to execute any other provision of the national law might be enabled to enforce this.

§ 820. But if this consequence is not involved in Judge Taney's justification of the legislation of Congress, it would still seem that, under that view, legal operation or effect, altogether beyond any effect as evidence, had been given in a State to a judicial proceeding of another State; and whether this can be done is, at the least, a matter of much doubt,' and besides, since the person affected by the judicial proceeding was beyond the jurisdiction of the State in which it was rendered, it would appear that it could not, under the decisions, have "effect," even as evidence, in other States.'

§ 821. If either of these provisions is to receive the fourth construction it would appear that, in being part of the supreme law of the land; it binds all persons, private as well as public, and that the rights and obligations created by it might be maintained and enforced by the instrumentality of any whose office it may be, in any jurisdiction within the United States, to apply that law.

The judicial power of the United States extends to all cases arising under the Constitution. The question occurs whether, independently of any statute on the subject, the demand of a State for the delivery of a fugitive from justice, or the claim of a private owner for the delivery of a fugitive bondman, constitutes a case within the judicial power of the United States and within the concurrent judicial power of the several States?

The question-of the exercise of judicial power-which is here considered, is not whether the statutes which Congress should pass, in the exercise of an express or implied power to carry these provisions into effect, would not be a law, applica

'On which argument see ante, p. 549, note.

* See ante, pp. 257–260.

3

Ante, p. 246.

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