support, in certain circumstances, rights and obligations incident to slavery, and others which involve its recognition as an effect of the local (internal) law, by the national government, in such States as may have adopted it or allowed it to continue.'

§ 707. Such observations may apply to questions like those arising on the demands made upon Governor Seward for persons charged with the abduction of slaves from Virginia and Georgia. It does not appear to be a question whether the forcible abduction of a free negro, such as was charged on the part of Pennsylvania, in 1791, in the case cited, should be recognized as a crime within the meaning of this provision. Kidnapping is a crime at common law, and also, without doubt, by the statutory enactment of every State, and it does not appear that the Legislatures or the judiciaries of any colony or State ever made any distinction of the act according to the color or race of the person stolen, kidnapped, or abducted.

If the person seized or removed should have been, by the laws of some other State, to whose law he had formerly been subject, a chattel-slave, or a bondman, it would still depend upon the several will of the State in which he should be so seized whether the act should or should not be a crime by its laws: unless the right to seize and remove in such case has been given by the Constitution of the United States. For, except as determined by that instrument, the status of such a person is always determinable by law resting on the several will of the State in which he may be found; and there is nothing in international law, acting on states or nations as its subjects, to qualify this assertion. This has in part been shown in previous chapters, and will be further maintained in another part of the work. Whether there is anything in the Constitution of the United States, having the authority of national law with international effect, to limit the power of the States in this respect so as to legalize such seizure and re

1 Ante, § 484.

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Raymond, 474. 4 Bl. Comm. 219:-"Kidnapping being the forcible abduction and carrying away of a man, woman, or child from their own country, and sending them to another."

moval of a slave, when it would otherwise be unlawful by the law of the State into which he may have escaped, is a question which will also hereinafter be fully examined.'

§ 708. It is apparent that the question of the extent of the terms of this provision may arise in many cases occasioned by violations of the penal codes of the slaveholding States. To say nothing of differences as to the rightfulness of property in slaves, or rights over persons in involuntary servitude, the laws forbidding the instruction of slaves and persons of color, laws to prevent speaking or writing against the policy or morality of laws sustaining slavery, and others of similar character, are not accordant with the juridical standard of right received in other States. But unless the solution of such controversies can be placed in the hands of the judiciary,' it seems impossible to arrive at any definite rule in such cases.

§ 709. The persons who may be demanded must also be charged with treason, felony, or other crime, and have fled from justice. It has been urged in some of the cases that the charging intended by the Constitution must be some formal accusation by the State through its appointed officers s; or that the "justice" spoken of should be taken to mean the vindicatory machinery of the law put in motion to pursue the offender, as distinguished from the law itself against which the person demanded may have offended; that until thus actually pursued he could not be said to have fled from justice, though he might have actually removed from the State in the apprehension that the pursuit would be made. The person holding the chief executive authority of the State is not an officer to whom the initiatory steps of that pursuit are assigned by the State law, though he may facilitate it when commenced, as by issuing proclamations for the apprehension of offenders. It would seem, from the statute and cases, that the demand of the Executive should be accompanied by some charge made by some other person, though a formal proceeding of a grandjury or prosecuting officer of the State is not usually considered necessary. The oath of any private person professing

1 See post, Ch. XXVII.

VOL. II.--26

2 See Ante, § 695.

to be cognizant of the offence alleged, such as would induce a magistrate of the place where the offence is said to have been committed to issue an ordinary warrant of arrest, has generally been held a sufficient charge; and the fact that the person so charged had actually removed from the jurisdiction in which the offence was committed has been taken to be, in itself, a flight from justice.'

The person demanded must also have fled from the justice of the demanding State, by having therein committed the treason, felony, or other crime charged against him. However contrary the act charged may have been to the laws of the State making the requisition, it must also have been committed within its territorial jurisdiction.'

710. The persons who may be demanded and delivered up as fugitives from justice are further described in this provision as being charged with treason, &c., in a State, demanded by the executive authority of such a State, on being found in another such State, and are required to be delivered up for the purpose of being removed to the State having jurisdiction of the crime. The question of the extent of the word State, in this clause, does not appear to have been raised in any of the

1 Johnson v. Riley, 19 Geo. 133; Thornton's case, 9 Texas, 645,-Indictment found, or an affidavit, before a judge or magistrate, charging; which last was held sufficient in Johnston v. Vanamringe, 5 Bl. Ind. 311. In a portion of the Opinion in Kentucky v. Dennison, which will hereinafter be cited, Judge Taney intimates that charge implies some exercise of the judicial function; that the person must be charged in the regular course of judicial proceedings."

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Compare, on these questions, Opinion of Edmund Randolph, Am. State Papers, Misc. I, 42; Gov. Fairfield's (of Maine) Opinion, in 6 Am. Jurist, 1st Series, 226. Hayward's case, 1 Sandford's N. Y. Superior C. R. 701, under the State law of 1839, ch. 350, is authority, by parallel, on these points. Whether a person may be arrested by judge's warrant, in view of a subsequent demand on the Executive, is a different question. This is allowed by judicial practice in some of the States. Dows' case, 18 Penn. 37; State v. Buzine, 4 Harrington, 575; Goodhue's case, 1 Wheeler's Cr. Cases, 427, S. C. 2 John. Ch. 198; Fetter's case, 3 Zabr. 319. In some of the States this is authorized by special statute,

Ex parte Smith, 3 McLean's R. 132. Fetter's case, 3 Zabr. 320. Mr. Wolcott, Atty. Gen. of Ohio, in his Opinion of March 7, 1860, in case of Brown and Meriam, said:"The necessity of insisting on rigid proof of flight will not be doubted by any one familiar with the fact that in some of the States a practice has grown up of demanding the surrender, as fugitives from justice from those States,' of persons who have never been within their limits, on the legal fiction of a constructive presence and a constructive flight." If the fugitive is already held on a charge of crime by the State from which he is demanded, he is not to be delivered up; but, if discharged on that charge, the Sheriff may detain him to be delivered on the Governor's warrant. Troutman's case, 4 Zabriskie, 634.

reported cases. Congress, in legislating, have, it must be assumed, taken the word in the Constitution to extend to the Territories. The District of Columbia is not mentioned in the Act of 1793, but an Act of 1801 (ante, p. 25) supplies the defect. The question of the extent of the word in this provision will hereinafter be further considered in connection with that of the same word in other clauses.

$711. Pursuing the method proposed in the commencement of this chapter, the inquiry is now to be taken up—

Who are the persons who may be the objects of the claim and delivery spoken of in the second of these provisions, and in the acts of Congress which have been passed to carry it into effect?'

In this provision persons are described as "held to service or labor in one State under the laws thereof" and as "escaping into another." The precise extent of these descriptive words has never been considered by the judiciary, and the commentators have not attempted to define it. It would be superfluous to cite decisions here to show that the courts have constantly taken these words to include the slaves of the slave-holding States of the Union."

§ 712. Under this provision, and the acts of Congress based on it, claims have been made by their masters for the delivery of minor white apprentices, fugitives from their indentured service under State laws. In Boaler v. Cummines (1853), 1 Am. L. Reg. 654, where a boy apprenticed in Delaware was claimed, under the law of Congress, Judge Kane, of the Eastern District of Pennsylvania, sustained the master's right, saying, "I know no words that could more clearly include apprentices." This is probably the only reported judicial decision on this point. Such claims appear to have been sustained by U. S. Commissioners in Massachusetts and in Connecticut."

It is here assumed that the acts of Congress may apply to all the persons included under the terms of this provision and to no others. The third and fourth sections of the law of 1793 were the only law of Congress on this subject before the act of 1850, and they were not repealed by the latter. The two acts will be found in notes to Ch. XXVIII.

* But it has sometimes been argued that the clause does not apply to those persons; as by Mr. Gerrit Smith on the trial of U. S. Deputy Marshal Allen, (ante, p. 40, n.) In The Unconstitutionality of Slavery, App. A., Mr. Lysander Spooner maintained the same doctrine.

So stated in IV. Monthly L. R. 526, VI. ib. 178, 295. Judge Sutliff, in 9

In the case of Van Orden, in New York (1854), it was held by U. S. Commissioner Morton that such a claim could not be sustained under the provision.'

§ 713. Since legal relations consist of rights and correlative obligations, the idea of service or labor due, enters, it may be said, to a greater or less degree into every legal relation, and there is in every civil society a large class of relations in which the obligation due is specifically described as being a debt of some sort of service or labor to the person having the corresponding right.'

The extent of the terms here used must be limited by their reciprocal bearing, as well as by the general rules for the interpretation of all these provisions which have been already stated. The words held and escaping express of themselves such a limitation of the relations in which this service or labor is here spoken of as due. The service or labor due must be such as arises from a condition of bondage, and may be specifically enforced by subjection to a personal control. It must be subjection to a private person in distinction from the subjection due to a State or the political representatives of that State. It must be service or labor in such a relation to the dominion of another that the term "escaping" would have been applicable to it in the language of the international law which had been previously recognized in the States which composed the Union. This excludes those services due on ordinary contract, under which the party held to render them must respond by the forfeiture of pecuniary damages in case of refusal to fulfill his obligation. By this rule also the debt of service or

Ohio, 248, says: "For the provision and the act of 1793, according to the opinions expressed by Daniel Webster, Chancellor Walworth, and others, apply as well to apprentices as to slaves. Indeed, I am not aware that a contrary opinion has ever been expressed by any jurist or statesman."

'Mr. Morton, in his opinion, given in the city newspapers of the day, held that the word person in the Constitution and in the sense therein used, is synonymous with slave," that the decision of the Supreme Court in Prigg's case "has rendered it now impossible to hold otherwise than that apprentices are wholly excluded from having been within the intention of the framers of the Constitution," &c.; that Story, J., in commenting on those clauses of the Constitution where slaves are referred to as persons, must be taken to support this view.

The learned reader's recollection of the history of the great law-suit-Poor Peter Peebles v. Plainstanes—may suggest to him the "fugie warrant" which Peter obtained in the English border county for the person of Mr. Alan Fairford, his counsel, as a fugitive from his service. See Scott's Redguantlet, Vol. I. ch. 7. §§ 604-606. Ante, § 143.

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