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the establishment of treaties, no nation was under any obligation to surrender a fugitive to another nation, though it was sometimes done as a result of international comity. “But,” says Mr. Justice Miller, "it has never been recognized as among those obligations of one government towards another, which rest upon established principles of international law."142
But upon this question there was a difference of opinion among jurists. Mr. Chancellor Kent, in the case of Washburn,43 announced that it was the duty of a State to surrender fugitive criminals.
But soon afterwards, Chief Justice Tilghman, in Short v. Deacon," announced the contrary doctrine, holding that the surrender of a fugitive pertained to the executive branch of the national government, to which the demand of the foreign power must be addressed; that the judges could not legally deliver up a fugitive, nor could they command the executive to do so.
“Whether in the United States," says Mr. Justice Miller, in United States v. Rauscher, supra, p. 412, "in the absence of any treaty on the subject with a foreign nation, and in the absence of any congressional provision on the subject a State can, through its own judiciary or executive, surrender a fugitive from justice to such foreign nation, is a question which the Courts have not determined, though it has been under consideration by them.”
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.
This clause does not seem to have been contained in the report of any committee made to the Convention, but on the 28th of August, Mr. Butler and Mr. Pinckney moved in the Convention to require fugitive slaves and servants to be delivered up like criminals.” Mr. Wilson said this would oblige the Executive of the State to do it, at the public expense.
42 United States v. Rauscher, 119 U. S. 412. 43 4 Johns. Ch. 166. 44 10 S, & R. 125.
Mr. Sherman saw no more propriety in the public in seizing and surrendering a slave or servant than a horse.
Mr. Butler thereupon withdrew his proposition, in order that some particular provision might be made, concerning
The following day he moved to insert: “If any person bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor.” This was agreed to nem. con.,46 and later was changed to its present form by the Committee on Style.
This section was inserted in the interest of slaveholders. Its purpose was to give a slaveholder the right to pursue a slave who had escaped into a free State and take him to the State from which he escaped, notwithstanding any law or regulation which might exist in the State in which the slave was arrested.
As early as 1793 Congress passed an act entitled, “An act respecting fugitives from justice and persons escaping from the service of their masters,” which was intended to supplement the constitutional provision in reference to the return of runaway slaves to their masters.
In the great case of Prigg v. Commonwealth of Pennsylvania,47 Mr. Justice Taney in referring to this clause remarked (p. 611):
“Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.
45 Journal, 624. 46 Journal, 631. 47 16 Peters, 539.
“By the general law of nations, no nation is bound to recognize the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's case, Lofft's Rep. 1; s. C., 11 State Trials by Farg. 340; s. C., 20 Howell's State Trials, 79; which was decided before the American Revolution. It is manifest from this consideration, that if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause was, therefore, of the last importance to the safety and security of the Southern States, and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity.'?48
48 Mr. Webster in his celebrated speech delivered in the Senate of the United States on March 7th, 1850, and which was generally believed greatly to have injured his chances for the Presidency, in referring to this clause remarked:
"I have always thought that the Constitution addressed itself to the legislatures of the States or to the States themselves. It says that those persons escaping to other States 'shall be delivered up, and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming therefore within the jurisdiction of that
Since the abolition of slavery in the United States this clause has only an historical interest.
State, shall be delivered up, it seems to me the import of the clause is that the State itself in obedience to the Constitution shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now. But when the subject, some years ago, was before the Supreme Court of the United States, the majority of the judges held that the power to cause fugitives from service to be delivered up was a power to be exercised under the authority of this government. I do not know, on the whole, that it may not have been a fortunate decision. My habit is to respect the result of judicial deliberations and the solemnity of judicial decisions. As it now stands, the business of seeing that these fugitives are delivered up resides in the power of Congress and the national judicature, and my friend at the head of the judiciary committee has a bill on the subject now before the Senate, which, with some amendments to it, I propose to support, with all its provisions, to the fullest extent. And I desire to call the attention of all sober-minded men at the North, of all conscientious men, of all men who are not carried away by some fanatical idea or some false impression, to their constitutional obligations. I put it to all the sober and sound minds at the North as a question of morals and a question of conscience. What right have they, in their legislative capacity, or any other capacity to endeavor to get round this Constitution, or to embarrass the free exercise of the rights secured by the Constitution to the persons whose slaves escaped from them ? None at all; none at all. Neither in the forum of conscience, nor before the face of the Constitution, are they, in my opinion, justified in such an attempt. Of course it is a matter for their consideration. They probably, in the excitement of the times, have not stopped to consider of this. They have followed what seemed to be the current of thought and of motives, as the occasion arose, and they have neglected to investigate fully the real question, and to consider their constitutional obligations; which, I am sure, if they did consider, they would fulfill with alacrity. I repeat, therefore, sir, that here is a wellfounded ground of complaint against the North, which ought to be removed, which it is now in the power of the different departments of this government to remove; which calls for the enactment of proper laws authorizing the judicature of this government, in the several States, to do all that is necessary for the recapture of fugitive slaves and for their restoration to those who claim them, Wherever I go, and whenever I speak on the subject, and when I speak here I desire to speak to the whole North, I say that the South has been injured in this respect, and has a right to complain; and the North has been too careless of what I think the Constitution peremptorily and emphatically enjoins upon her as a duty.” Works of Daniel Webster, vol. 5, 354, 355.
ADMISSION OF NEW STATES.
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The first part of this clause is attributable to Gouverneur Morris, and the latter part to Mr. Dickinson.
The earliest provision relative to the admission of new States into the Union was contained in a resolution reported by a committee of Congress, March 1, 1784, of which Mr, Jefferson was chairman. The resolution provided that the territory which should be ceded by individual States to the United States should be formed into distinct States. That the States might organize a temporary government which should continue in force until a State had acquired twenty thousand free inhabitants, at which time it should receive authority from Congress to call a convention of representatives for the purpose of establishing a permanent government for itself. But both the temporary and permanent governments should be established on the following principles as their basis :
"1. That they shall forever remain a part of the United States of America. 2. That in their persons, property and territory, they shall be subject to the Government of the United States in Congress assembled and to the Articles of Confederation in all those cases in which the original States shall be so subject. 3. That they shall be subject to pay a part of the Federal debts contracted or to be contracted to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other States. 4. That their respective governments shall be in