CHAPTER XXXI.

THE DOMESTIC INTERNATIONAL LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THAT PORTION OF THIS LAW WHICH IS IDENTIFIED WITH THE LAW OF SOME SEVERAL STATE. OF STATE LEGISLATION IN RESPECT TO FUGITIVES. OF THE POWER OF CONGRESS IN RESPECT TO THE DOMESTIC SLAVE TRADE. OF SOME QUESTIONS OF THE STATUS OF PERSONS AS DETERMINED BY THIS LAW.

§ 961. In the preceding ten chapters inquiry has been directed to the determination of rights and duties of private persons, in relations arising out of conditions of freedom and its contraries, by the quasi-international law of the United States identified in authority with the national municipal law. According to the method hereinbefore proposed, the next subject of investigation is the determination of rights and duties of private persons, in relations arising out of conditions of freedom and its contraries, by that branch of the domestic international law of the United States which, in authority, is identified with the local municipal law of the several States.'

Other topics have herein already been considered to an extent which precludes an equally full exposition of this branch of the main subject in the present volume. The State law having this international character can here be noticed only as it is that law which must determine a few prominent questions which, on reasoning given in the preceding chapters, are supposed not to be determined by the quasi-international law of the United States contained in the provisions of the fourth Article.

It results, from the assumption that in each State of the Union this international law derives its authority from the

independent will of such State, that the statutes and decisions of the State which is the forum of jurisdiction must, in any particular case, be received as the best exponents of this law, as compared with the statutes and decisions of other States which may have been also promulgated as exponents of the same international law. But, in theory, this law, so far as it is common or unwritten law, may be regarded as one common to all the States of the Union: as the international private law customarily received in any one country is supposed to be a law received by all civilized countries, and, as this law, supposed to be common to all the States of the Union, may, in theory, be regarded as the international private law of the civilized world. In the absence of statutes and decisions of the State which is the forum of jurisdiction, the decisions of other States and other nations may be referred to.'

This State law may be derived, in part, from positive legislation. The State statutes relating to the condition of persons. coming from other States have been indicated in the abstracts of the legislation of the several States given in the earlier chapters of this volume. It would be impossible here to present the customary or unwritten international law as it may be received in any one or more of the several States on any particular question noticed in this chapter. This customary or unwritten law can here be regarded only a law presumptively common to the several States. As such, it has, for the greater part, been already given in the exposition of the international private law of the colonies and States before the adoption of the Constitution."

§ 962. The question as to the validity of State legislation for the purpose of carrying into execution the provisions of the second section of the fourth Article, in relation to fugitives from justice and from service or labor, may be presented as a question as to the classification of the topic under one or the other of the two branches of the domestic international law of the United States. Or the subject may be referred to the general inquiry hereinbefore stated' by what means are these provisions to be made operative on private persons?

1Ante, § 388.

2 See Chapters VII., VIII., IX., X.

Ante, p. 421.

The authorities bearing on this question cannot here be classified. The Opinion of the Supreme Court, in Prigg's case, declaring absolutely null and void all State legislation in respect to the delivery of fugitives from labor on claim, has been very generally received as controlling authority;' though doubts as to the correctness of that doctrine have been very often expressed, even by those who have maintained the legislation of Congress.

This question is directly connected with that of the true construction of these provisions. If the first of the four constructions already indicated' were to be adopted, it would follow that the means of carrying them into effect are to be derived exclusively from State legislation. Under this construction, the subject could not be classified under the head of quasi-international law identified in authority with the national municipal law, under which head it has hereinbefore been treated. It would, under that view, be a topic of that international private law which in each State rests on the authority of the several State and is part of its local law.

If the second construction were adopted as the true basis of the legislation of Congress, it would be impossible to give an answer to this inquiry which should be consistent both with this construction and with the doctrine of Prigg's case. For, under this construction, it is assumed that the States must and can legislate, but will not; while the Supreme Court declares that they shall not, and, indeed, cannot, though they would.'

According to either adaptation of the third construction, the duty correlative to the right given by either provision is the duty of the national Government, and the States certainly cannot legislate to enforce any duty of the national Government, whether by carrying into execution the judicial power of the United States or otherwise.

According to the fourth construction, the provision operates

116 Peters, 622: ante, p. 475; Kirk's Case, 1 Parker's Cr. 67; Richardson r Beebe, 9 Law Rep. 316; Graves e. The State, 1 Carter, 368; S. C., Smith's Ind. 258; Donnell v. The State, 3 Porter's Ind. 481; Thornton's Case, 11 Illinois, 532. But the State police power may be exerted. Eells v. The People, 4 Seammon, 498; Landry . Klopman, 13 La. Ann. 345.

See Smith, J., in 3 Wisc. 103; ante, p. 517, note.

as private law, independently of any legislation. This law is part of the law of each State, and the cases which arise under it, as such State law, must be applicable by the judicial power of the State. It would seem that the State might pass laws to carry into effect the judicial power of the State in such cases.

The State, by such legislation, could not interfere with the exercise of the judicial power of the United States applying the provisions as part of the national private law. But it would seem that the judicial power of the State, as directed by State legislation, and that of the United States, as directed by national legislation, might be concurrently exercised.'

§ 963. It would seem that a conflict of jurisdiction between the courts respectively applying this law in the exercise of the judicial power of the State and of the United States need not arise, if there be between them no conflict of opinion as to the right and correlative obligation to be maintained under it.

On a comparison of the statutes of the several States on this topic, an important distinction among them should be noticed. There are some which declare that persons claimed as fugitives from labor shall not be removed from the State by the claimants, except after a trial of the matters in issue before a court and jury, as in such statutes is provided. These laws are in direct conflict with the law of Congress, and can be valid only if the law of Congress is unconstitutional in providing for such removal without such trial. The question of the validity of the State law turns on the question-does the provision give a right to remove on a summary proceeding before a commissioner, or does it give only a right to remove on a judicial determination of the claim before a jury?

There are other State laws which declare that no person shall be removed, as a fugitive from labor, except as provided either by such State law or by the law of Congress. The

1 Ante, SS 443-447.

See ante, laws of Massachusetts, p. 32; Vermont, p. 40; Michigan, p. 140;" Wisconsin, p. 142.

See ante, laws of New Hampshire, p. 36; New York, p. 60; New Jersey, pp. 64, 66; Pennsylvania, p. 73; Ohio, pp. 118-120; Indiana, p. 128; Illinois, pp. 135, 136; Michigan, p. 139; and California, p. 202. See also laws of Missouri, p. 169; Arkansas, p. 172; Iowa, p. 176; Kansas, p. 187; which even require the removal to be by the State law, and make no reference to the law of Congress as an alternative proceeding.

validity of these State laws does not depend upon the validity of the law of Congress, but upon the question whether the provision in the Constitution gives the claimant a right to seize the fugitive and remove him from the State without applying to any public functionary.

Bills of either of these classes might be called bills for the protection of personal liberty. They are all equally invalid, according to the Opinion delivered by Judge Story in Prigg's case. But it is herein held that, whether the State laws which oppose the execution of the law of Congress by requiring a trial by jury in the State courts are, or are not, valid, statutes of the other class are in perfect harmony with the Constitution.'

§ 964. A similar question, as to the classification of the topic under one or the other of the two branches of the domestie international law of the United States, is presented in connection with the question which has been mooted--whether the exportation and importation of slaves, for sale, from and into the several States, or what is called the domestic slave trade, may be regulated by the legislation of Congress, to the exclusion of State law?

Congress has not, as yet, enacted any law for this purpose. It is needless to refer to the statutes of the several States which may be said to relate to this trade. In Groves v. Slaughter (1841), 15 Peters, 449, the question was raised—whether "the provision of the Constitution of the United States which gives the regulation of commerce to Congress did not interfere with the provision of the constitution of the State of Mis

'The argument is given ante, pp. 569–579. In Prigg's case it was admitted that the claimant may be interrupted by a civil suit in trespass or of replevin, and must suffer in damages if he fails to prove his claim on trial The court would not probably have denied that he might be indicted for kidnapping, and found guilty, if the person carried off by him was not a fugitive within the meaning of the provision. These remedies against unlawful seizure and removal are given by the State law-common or unwritten, it may be, but State law, in origin and authority, as much as the statute law. Thus, the court held that the State may protect the liberty of its inhabitants, but may not express its will in a statute. See ante, p. 728, note. It has been intimated that Congress may legis late to carry into execution the provision guaranteeing the privileges of citizens of each State in the other States. Ante, 688-689. It would be in harmony with Prigg's case to hold that the States have no power to legislate for the purpose of securing those privileges. Would it be also in harmony with that case to hold that the States have no other juridical power or authority in respect to that subject ?