ernment of that State, the case would have been different, and the right of the master must have yielded to a paramount right. But the interference of any private individual by suing out process or otherwise under the pretense of a debt contracted by the negro was an illegal act and void."

The above dictum, in respect to fugitives who should infringe the penal law, is confirmed in The Commonwealth, ex rel. Johnson, a negro, v. Holloway (1817), 3 Serg. & Rawle, 4, where it was unanimously held that a runaway slave who is charged with fornication and bastardy in the State cannot be delivered over to his master unless security be first given for the maintenance of the child.'

$ 725. The persons who may be claimed and delivered up are described as owing service or labor in a State under the laws thereof, and as escaping into another State. From the terms of the two Acts passed on this subject, Congress must be supposed to have construed the word, as here used, to include a Territory of the United States and the District of Columbia. There are no recorded judicial opinions on the meaning of the word State in this provision.

It has been seen that the word State, in the clause defining the extent of the judicial power of the United States, has been limited by the courts to the organized States of the Union, excluding the Territories and the District of Columbia. The greater number of opinions seems to be in favor of restricting equally the meaning of the word in the first section of this Article. It would be difficult to say why the reasoning which has supported these opinions should not equally determine the meaning of the word in the several clauses of the second section of this Article. So far, therefore, as there is any judicial authority as to the meaning of the word here, it is rather in favor of the restricted sense.

1 It does not appear which commitment was the earliest. In Sims' case, he being in the custody of the U. S. Marshal, under an order or warrant of a U. S. Commissioner acting under the law of 1850, and another issuing for a violation of the criminal law of the United States, process was issued by State authority against him for violation of the State law. Opinions of counsel taken on that occasion supported the custody of the United States as against the State; on the ground that priority of possession should decide. IV. Month. L. Rep. 155. The opinion of C. B. Goodrich, Esq., ib. 335, maintains the custody of the United States under the fugitive-slave law, if prior in time, against the penal law of the State.

2

Ante, Vol. I. p. 433.

Ante, § 624.

It seems indisputable that the word State, in the Constitution, is employed to designate a political community organized in some manner peculiar to that country and nation in and by which that Constitution is recognized as the highest public law, and not in that general sense in which the word state is used by writers on general public law and political ethics. Following the pre-existing and continued use of the term in expositions of the public law of the United States, it would seem that the word could not be interpreted in the Constitution as meaning anything else than an organized State of the United States, "a member of the American compact, "a member of the Union," such as is spoken of in those clauses of the Constitution which prescribe the organization of the Senate and House of Representatives, and the mode of electing a President of the United States."

But if a given text may be construed, by reference to the general purpose of the utterer, as ascertained from the mere interpretation of the terms used and other elements furnished by the context, so as to give to those terms a wider or narrower meaning than they could have by interpretation alone,* there may be sufficient reasons for not thus limiting the extent of the term State in these clauses of the Fourth Article.

It is not a received principle, that a word occurring in different places in one instrument is always to be understood in the same sense. In the clauses prescribing the organization

1

5

Judge Law, in Seton v. Hanham, R. M. Charlton, 374.

Ch. Justice Marshall, in Hepburn v. Elzey, 2 Cranch, 452.

In the case last cited, Marshall, referring to these clauses, says:—" These clauses show that the word State is used in the Constitution as designating a member of the Union, and excludes from the term the signification attached to it by most writers on the law of nations. When the same term which has been used plainly in this limited sense in the articles respecting the legislative and executive departments is also employed in that which respects the judicial power, it must be understood as retaining the sense originally given to it."

Lieber's Hermeneutics, 56. Construction is likewise our guide, if we are bound to act in cases which have not been foreseen by the framers of those rules by which we are nevertheless obliged, for some binding reason, faithfully to reg ulate, as well as we can, our actions respecting the unforeseen case; for instance, when we have to act, in politics, bound by a Constitution in a case which presents features entirely new and unforeseen.

"Construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text-from elements known from and given in the text-conclusions which are in the spirit, though not within the letter, of the text."

Ante, p. 330, note. Much may depend on the character of the instrument.

of the national Government, and in the last paragraph of this Article, relating to the admission of new States into the Union, the rule enacted is one of public law; it determines the modal existence of the integral people of the United States in their possession of those national powers which, by the Constitution, are "granted" to the Government of the United States.' But the clauses which are here considered define and guarantee rights which are to be claimed by private persons as against other private persons, and, even if they are public law by conferring power on Congress or by limiting the powers of the several States, the protection of private rights by the enforcement of private obligations under a quasi-international private law is the end specifically in view.

As in each of the organized States of the Union there is a local municipal law emanating from the "reserved" powers held by the State or the several people thereof, so in the District of Columbia and in the several Territories of the United States there is a local municipal law emanating from powers of like nature with those "reserved" powers; powers which, though not held in reservation by a local political people of such District and Territories, but held by the Government of the United States, are like the "reserved" powers of a State, distinct from the powers "granted" in the Constitution to the national Government to be exercised in all parts of the dominion of the people of the United States.' If inhabitants of the organized States may be citizens of such State without reference to the possession of sovereignty by the corporate people of that State, so inhabitants of the District or Territories may be citizens thereof. The public acts, records, and judicial proceedings of the District and Territories are as fitly objects of recognition in international private law as are those of the organized States. Their penal laws have as high a sanction as have those of the States, and free and bond con

In a statute, directed to some well-known end, the rule may be different. See Lord Denman, C. J., in 6 Ad. & Ellis, 68, 69.

'Ante Vol. I., p. 407, note 3.

That these provisions have this character, as distinguished from being public international law or treaty stipulations, will be argued in Ch. XXVII.

Ante, §§ 376, 397.

VOL. II.-27

ditions may as lawfully exist in them as in districts under the political dominion of an organized member of the national Union. To all the intents and purposes contemplated in these clauses, they are whatever the organized States are. In the provisions of the Constitution which are in the nature of a bill of rights, the inhabitants of the District and of the Territories have a guarantee of their civil liberties similar to those enjoyed by the inhabitants of the States under the same provisions, and under their several State Constitutions. The Constitution also provides that the powers from which the local laws of existing Territories proceed shall hereafter become the "reserved" powers of the people of new States organized in those Territories. The franchises maintained by these provisions are enjoyed in private relations under a law having quasi-international extent. The history of public law in America exhibits a distinction, in respect to the enjoyment of political rights, between the inhabitants of an organized colony or State and the inhabitants of territory not organized under a local autonomic authority recognized by the instruments of imperial or national government. But the history of American private law shows no corresponding distinction, between persons so discriminated, in respect to franchises not political, least of all in respect to such as have had quasi-international extent. The construction which comprehends the District and the Territories within the extent of the word State in these clauses is in harmony with the spirit of American private law as exhibited in the existing Constitution, the Ordinance of 1787, the Articles of Confederation, and the history of colonial law.'

1 The argument applies also in the interpretation of the same word when employed in the third Article (see ante, Vol. I., p. 434). It may be argued that that provision contains a grant of power to the national Government, thereby limiting the reserved powers of the States; that it therefore is to be construed strictly. But it is also a franchise to the private citizen to have a choice of tribunals. See Newton v. Turpin, ante, p. 75, note.

It should be remembered that, when the Constitution was adopted, the only territory of the United States was that lying east of the Mississippi, which had been ceded by the several States (ante, p. 1, note 2), and that "the farther removed the time of the origin of any text may be from us, the more we are at times authorized or bound, as the case may be, to resort to extensive construction. For times and the relations of things change, and if the laws, &c., do not change accordingly, to effect which is rarely in the power of the construer, they must be applied according to the altered circumstances, if they shall continue to mean sense or to remain beneficial." Lieber's Herm. 134. In Rev. Code of North

726. In Vaughan v. Williams (1845), 3 McLean, 530; S. C., 3 Western L. J. 65, the action was under the State law, for rescuing, in Indiana, from the possession of the plaintiff, a citizen of Missouri, certain negroes, who, before he could lay any claim to them, had been brought voluntarily, by their owner, into Illinois, and there resided with him for six months. On the judge's charge, the verdict was for the defendant, who had also demurred on the ground that the constitutional provision does not apply "where the claim is made by a citizen of a new State not within the territorial limits of the Union at the adoption of the Constitution, and that a citizen of Indiana is not bound by such provisions; that the sixth article of the Ordinance of 1787, which remains in full force in Indiana, requires a fugitive from labor to be delivered up only when 'claimed in any one of the original States." The demurrer was overruled by Judge McLean.

In Jones v. Van Zandt (1842), 2 McLean, 611, where the action was in the U. S. Circuit, for the penalty under the act of 1793, for "harboring" a fugitive, the court held that the act is not affected by the sixth article of the Ordinance of 1787,' which, it was urged in this case, "is paramount to the act of Congress, and imposes no obligation on this State [Ohio] to deliver up a fugitive from labor, except when claimed by a citizen of one of the original States."

This case having been carried up to the Supreme Court of the United States, it was said by Woodbury, J., delivering the opinion of the Court, 5 Howard (1846), 230: The last question on which a division is certified, relates to the Ordinance of 1787, and the supposed repugnancy to it of the act of Congress of 1793. "The Ordinance prohibited the existence of slavery in the territory northwest of the River Ohio, among only its own people. Similar prohibitions have from time to time been introduced into many of the old States. But this circumstance does not affect the domestic institution of slavery, as other States may choose to allow it among their people, nor

Carolina, c. 108, § 2, it is declared that the words State and United States in that

Code shall be

ritories.

66

construed" to include the District of Columbia and the Ter