also denies power in Congress to legislate, and appears to regard the provision as a law acting on the States as its subjects.'

§ 688. The question, whether Congress or the States have the power to legislate for the purpose of carrying this provision into effect, depends upon the view taken of it as public or private law. Four views or constructions, which it is supposed might be advanced in reference to any of these provisions, have been stated in another chapter. It would appear that, under any construction, the provision should act as a limit to the legislative power of the States, and might be applied by the judicial power of State courts in the first instance, or of the Supreme Court of the United States in the last resort, in declaring void any State law in conflict with it. But whether a case could arise under this provision, which would be within the judicial power of the United States, as a case "arising unde the Constitution" of the United States, and not as a case arising between certain parties,' would appear to depend on this question of construction, as does also the legislative power.

689. As already remarked, there is apparently no necessity for supposing that a similar construction, in respect to the persons upon whom they operate, should be given to each of these provisions.' But it seems to be generally assumed in all arguments on the subject, that it must be presumed that the principles which may be applied to the construction of any one should be equally applicable to the construction of another. For this reason, the authorities on the construction of the other provisions should be examined as guides in the construction of that which is the subject of this chapter.

But, without entering fully into the question of the construction of this provision, it may be argued, consistently with views to be presented in connection with the construction of other provisions of this Article, that the last of the four con

1 See also the citations from these opinions in Ch. XXVI.

Ante, Vol. I., p. 432. Mr. O'Conor, arg. 20 N. Y. 581:-" It is a curb set on State legislation, harmonizing with the provision which extends the ægis of the federal judiciary to the non-resident citizen in all controversies between him and the citizens of the State in which he may be temporarily sojourning."

* Ante, § 603.

structions which have been mentioned is that which harmonizes best with the general character of the Constitution; that on the principle of the continuation of private law this provision may be supposed to have been intended to supply a law of national authority, and quasi-international effect, in the place of that law of individual rights for persons of white or European race, which, in the colonies, was maintained by the national or imperial authority, operating equally in every part of the empire, and which maintained those rights in the case of any such person, even against the local authority of any colony or several jurisdiction.

This law would indeed have continued, had the Constitution contained no such provision, to be judicially applied in each State to determine the rights of persons appearing therein as domestic aliens, until it should have been changed under the juridical authority of the State, either by positive legisla tion or judicial modification of unwritten law. But it may perhaps be said that it would have ceased to have its former extent, since the States, but for these provisions of the fourth Article, would have equal authority over all persons within their limits, whether domiciled inhabitants or domestic aliens. The international recognition of the rights of domestic aliens would, in each State, have depended upon its several will and autonomic recognition of international obligation, and the only private international law which could have been judicially recognized as applying to persons domiciled in another State would have been that which, in its authority, was identified with the local municipal law.'

That is, this would have been the theory of the public law (ante, $436). But whether there ever was a period when a State would have been patiently allowed to treat the other States as foreign countries may be doubted. See ante, n. 3, on p. 353.

CHAPTER XXV.

OF THE DOMESTIC INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. THE SUBJECT CONTINUED. OF THE SECOND AND THIRD PARAGRAPHS OF THE SECOND SECTION OF THE FOURTH ARTICLE. OF THE PERSONS WHO MAY BE DELIVERED UP AS FUGITIVES FROM JUSTICE OR FROM LABOR.

§ 690. The second and third paragraphs of the second section of the fourth Article of the Constitution are as follows:

"2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

"3. No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."

§ 691. The general object of the first of these provisions is the enforcement of State laws which require actual custody of the person. In the additional territorial extent which it communicates to such laws, it modifies the enjoyment of the individual right of personal liberty. But its general effect, as auxiliary to the administration of the criminal law of the States, is a topic beyond the scope of this treatise. A state may however propose, by punitory laws, to secure the maintenance of any particular status or personal condition. Thus the abduction of a free person, except in the maintenance of rights incident to the relation of family, is in every country a criminal act, and, in the common law of England and America, is known as the crime of kidnapping. So, in countries where involuntary servitude exists, the law punishes the act of con.

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.

1 Ante, p. 236.

9

Ante, §§ 23, 24.

In