demand, there is no power in the Supreme Court of the United States to enforce the performance of this moral duty. Kentucky v. Ohio, 24 How. 107-8.

The relator insists on his discharge, on the ground of insufficiency What are and illegality of the warrant; in this, that it does not show by recital, the requi that the representation and demand of the governor of the State of sites of? Arkansas, was accompanied with a copy of an indictment found, or an affidavit made, before some magistrate of the State of Arkansas, certified to by said executive as being duly authenticated, and charging the relator with having committed the crime of forgery within the said State; and we are of opinion, that, on the ground set forth, he is entitled to his discharge. Ex parte Thornton, 9 Tex. 644-5. The chief-justice quoted the foregoing clause of the Constitution and the act of 1793, and concluded the things necessary are:-1. A copy of the indictment found, or affidavit made, charging the alleged fugitive with having committed the crime. 2. The certificate of the executive of Arkansas, that such copy was authentic. (Ex parte Clark, 9 Wend. 222, cited.) The counsel for Thornton had relied upon this case, and Buckner v. Finley, 2 Pet. 586; Ex parte Holmes, 12 Vt. 631; Case of Jose Ferriara de los Santos, 2 Brock. 493; The matter of Short, 10 S. & R. 125; Holmes v. Jennison, 14 Pet. 540; Warden v. Abell, 2 Wash. Va. 359,380. The alleged crime must have been committed in the State from which the party is claimed to be a fugitive; and he must be actually a fugitive from that State. Ex parte Joseph Smith, 3 McLean, 133; Hayward's Case, 1 Am. L. J. 231; In the matter of William Fetter, 3 Zabr. 311. The affidavit, when that form of evidence is adopted, must be at What must least so explicit and certain that, if it were laid before a magistrate, the affidavit it would justify him in committing the accused to answer the charge. 6 Penn. L. J. 414, 418. It must state positively that the alleged crime was committed in the State from which the party is alleged to be a fugitive, and that the party is actually a fugitive from the State. Ex parte Smith, 3 McLean, 121, 132; Fetter's Case, 3 Zabr. 311; In the matter of Hayward, 1 Sandf. S. C. 701; Degant v. Michael, 3 Cart. 396.

For the general principles, as an international question, see 1 Kent's Com. Lect. 2, p. 36; Matter of Washburn, 4 John. Ch. R. 106; Rex v. Bull, 1 Am. Jurist, 297; Vattel, B. 2, § 76, 77; Rutherforth Inst. B. 2, ch. 9, § 12; Commonwealth v. Deacon, 10 Serg. & R. 125; 1 Am. Jur. 297; Commonwealth v. Green, 17 Mass. 515, 546-548; In re Fetter, 3 Zabr. 311; Executive Document of 1840, 1 Sess. 26 Cong. No. 99.

225. "SHALL ON DEMAND, ETC., BE DELIVERED UP."-A precept by the governor of a State, appointing an agent to receive a fugitive from justice, reciting that he had made a requisition, agreeably to the Constitution and laws of the United States, upon the governor of the State into which the fugitive was alleged to have escaped, is prima facie evidence, for the protection of the agent, of the truth of the recitals. Commonwealth v. Hall, 9 Gray (Mass.), 267. A prima facie case is all that is necessary. Somerset's Case, 20 State Trials 79. Story's Const. § 1812.

contain?

223.

Suppose the

fugitive has been convicted and pardoned?

What are the obligations as to

persons held to service?

What is a person?

227, 224.

What means

in a State?

225, 226, 2.

What means escaping?

222.

And a warrant issued by the governor on whom the demand is made, to "take and receive into custody" a fugitive from justice, authorizes him to arrest such fugitive; and is not repugnant to the Constitution and laws of this State or of the United States.

Commonwealth v. Hall, 9 Gray (Mass.), 267. The foreign extradition jurisdiction is purely political; and does not properly belong to the judiciary, but to the executive. (In 're Kaine, 14 How. 103.) Curtis' Com. § 94, 95. And see Holmes v. Jennison, 14 Pet. 540; S. C., Curtis' Com. § 218, note 1. The governor may mean the "executive authority of a State," under the U. S. statute of Feb. 12, 1793. (1 St. 302; 1 Brightly's Dig. 293.) Commonwealth v. Hall, 9 Gray (Mass.), 262. Where the warrant is issued, the courts cannot go behind it; the only question they can entertain is as to the identity of the alleged fugitive. Pennsylvania v. Daniels, 6 Penn. L. J. 417, note; The State v. Buzine, 4 Harring. 572.

Where a defendant is brought into a State as a fugitive from justice, after acquittal, or conviction and pardon, he cannot be surrendered to the authorities of another State as a fugitive, but must be allowed an opportunity to return to the State in which he is domiciled. Daniels' Case, cited in Binn's Justice, 267. The agent appointed under the second section of the act of 12th Feb., 1793 (1 Stat. 302), is not liable to an action for false imprisonment by reason of any irregularity in the warrant of arrest. Johnston v. Vanamringe, 2 Blackwood, 311.

[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.

226. "A PERSON," here is limited, in practice, to apprentices and fugitive slaves; but there is no sound reason why it should not apply to all the domestic relations, where the party is "held to service or labor." See Act of 12th Feb., 1793, 1 Stat. 302; Act of 18th Sept., 1850, 9 Stat. 462; 1 Brightly's Dig. 294, 295; 6 Op. 309; 3 Black. Com. 4.

"IN ONE STATE." - This extends to the Territories, District of Columbia, and the Indian Territory. See 6 Op. 302-306; 3 Op. 370. The word "State," in both clauses of this article is pari materid, and it possesses, in some of its relations, a meaning broader than its apparent or usual signification. 6 Op. 304, which fully discusses the whole subject.

227." UNDER THE LAWS THEREOF ESCAPING INTO ANOTHER." "Escaping," here is not so comprehensive as "fleeing," in the last clause, since if the slave be carried by his master into another State, and there left, he obtains his freedom. See note 222; Webster's Dictionary, ESCAPE.

This includes apprentices. Boaler v. Cummins, 1 Am. L. R. 654. It does not extend to the case of a slave voluntarily carried

who were

free State?

by his master into another State, and there leaving him, under the Did it apply protection of some law declaring him free. Butler v. Hopper, 1 to slaves Wash. C. C. 499; Vaughan v. Williams, 3 McLean, 530; Pierce's allowed to Case, 1 Western Leg. Ob. 14; Kauffman v. Oliver, 10 Barr, 517; go volunStrader v. Graham, 10 How. 82; Miller v. McQuerry, 5 McLean, tarily into a 460; In the matter of Perkins, 2 Cal. 424; Commonwealth v. Alberti, 2 Par. 505. Slavery is a municipal regulation; is local; and cannot exist without authority of law. Miller v. McQuerry, 5 McLean, 469. But the question, whether slaves are made free by going into a State in which slavery is not tolerated, with the permission of their master, is purely one of local law, and to be determined by the courts of the State in which they may be found. Strader v. Graham, 10 How. 82; Scott v. Sandford, 19 How. 396. See In the matter of Perkins, 2 Cal. 424.

It was formerly held that the President had no power to cause As to slaves fugitive slaves, who had taken refuge among the Indian tribes, to in Indian be apprehended and delivered up to their owners. 3 Opin. 370. country? But this has been since overruled, and it is now held that such fugitive in the Indian territory, being there unlawfully, and as an intruder, is subject to arrest by the executive authority of the United States; and if in such territory there be no commissioner of the United States to act, the claimant may proceed by recapture without judicial process. 6 Opin. 302.

slaves?

The owner of a slave is clothed with full authority, in every What were State of the Union, to seize and recapture his slave, whenever he the owner's can do it without a breach of the peace, or any illegal violence. power over Prigg v. Pennsylvania, 16 Pet. 539; Norris v. Newton, 5 McLean, 92; Johnson v. Tompkins, Bald. 571; Commonwealth v. Taylor, 2 Am. L. J. 258; Van Metre v. Mitchell, 7 Penn. L. J. 115. But it is under the Constitution and acts of Congress only, that the owner of a slave has the right to claim him in a State where slavery does not exist. There is no principle in the common law, in the law of nations, or of nature, which authorizes such a recapture. Giltner v. Gorham, 4 McLean, 402. The Constitution, however, recognizes slaves as property, and pledges the federal government to protect it. Scott v. Sandford, 19 How. 395. A statute which punishes the harboring or secreting a fugitive slave, is not in conflict with the Constitution or laws of the United States. Moore v. Illinois, 14 How. 13. Nor does the Constitution exempt fugitive slaves from the penal laws of any State in which they may happen to be. Commonwealth v. Holloway, 3 S. & R. 4.

The Constitution confers on Congress an exclusive power to Is the power legislate concerning fugitive slaves; and the act of 1793 was con- of Congress stitutional and valid. Prigg v. Pennsylvania, 16 Pet. 539; In the exclusive? matter of Martin, 2 Paine, 348; Jones v. Vanzandt, 2 McLean, 612; In the matter of Susan, 2 Wheat. Cr. Cases, 594.

The Constitution and laws do not confer, but secure, the right to reclaim fugitive slaves against State legislation. Johnson v. Tompkins, Bald. 571; Giltner v. Gorham, 4 McLean, 402. The act of 18th Sept. 1850, was constitutional and valid. Ableman v. Booth, 21 How. 526; Sims' Case, 7 Cush. 285; Long's Case, 3 Am. L. J. 201; 1 Blatch. 685; 6 Op. 713.

141.

&

Was "slave"

used in

the original Constitution?

226, 21.

By what

character of proceeding is the delivery enforced?

225.

Through

the Federal laws?

The term "slave" is not used in the Constitution, and if " person" means "slave," then the Constitution treats slaves as persons, and not as property, and it acts upon them as persons and not as property, though the latter character may be given to them by the laws of the States in which slavery is tolerated. Lemmon v. People, 20 N. Y. (6 Smith), 624.

228. "SHALL BE DELIVERED UP."-This contemplates summary and informal proceedings (not a suit), and a prima facie case of ownership only. (Somerset's Case, 20 State Trials, 79.) Story's Const. § 1812; Jack v. Martin, 12 Wend. 511; Prigg v. Pennsylvania, 16 Pet. 667; Sims' Case, 7 Cush. 731; 2 Story's Const. (3d ed.) pp. 622, 625; Wright v. Deacon, 5 S. & R. 62. The delivery is

to be through the congressional enactments of Congress; and is the State or not obligatory upon the States, through their executives or authorities. Prigg v. Pennsylvania, 16 Pet. 608; affirmed in Jones v. Vanzandt, 5 How. 225; Moore v. Illinois, 14 How. 13. The student, who may wish to calmly survey this irritating subject, which served chiefly to prepare the publice mind for the effort to destroy the Union, but which has ceased to be a matter of agitation since the destruction of slavery, is recommended to read attentively the last-named cases (which are also carefully reported in Story's Const. § 1812a, 18126), and Glen v. Hodges, 9 Johns. 62; Wright v. Deacon, 5 Serg. & R. 62; Commonwealth v. Griffith, 2 Pick. 211; Jack v. Martin, 12 Wend. 311; S. C. 12 Wend. 507; Wheeler's Law of Slavery; Cobb on Slavery; The Debates of 1850, 1860, and 1861; The Report of the Committee of Thirty-one in 1861, and the authorities cited in these notes.

What resemblance did this clause bear

This clause of the Constitution was, in character, precisely a treaty. It was a solemn compact, entered into by the delegates of States then sovereign and independent, and free to remain so, on

to a treaty? great deliberation, and on the highest considerations of justice and policy, and reciprocal benefit, and in order to secure the peace and prosperity of all the States. (Sims' Case, 7 Cushing (Mass.) 285.) Story's Const. (3d ed.) § 1812b, note 1, pp. 615, 616. And see Miller v. McQuerry, 5 McLean, 469; Henry v. Lowell, 16 Barbour; Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 Sergt. & Rawle, 62.

For what was this clause designed?

How may new States be admitted?

This clause was designed to provide a practicable and peaceable mode, by which such fugitive, upon the claim of the person to whom such labor or service should be due, might be delivered up. Sims' Case, 7 Cush. 288. The law of 1793 (7 St. 302), for delivering up without trial, was constitutional. Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 S. & R. 62; Jack v. Martin, 12 Wend. 311; Hill v. Low, 4 Wash. C. C. 327; Prigg v. Pennsylvania, 16 Pet. 539; Johnson v. Tompkins, Baldwin, 371; Jones v. Vanzandt, 5 How. 215, 229. The fugitive must not only have owed service or labor in another State, but he must have escaped from it. (Commonwealth v. Fitzgerald, 7 Law Reports, 379; Commonwealth v. Avis, 18 Pick. 193.) Sims' Case, 7 Cush. 728.

SEC. III.-[1.] New States may be admitted by the Congress into this Union, but no new State shall be

restrictions?

229.

formed or erected within the jurisdiction of any other with what 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.

229. "NEW STATES" are others than those which formed the What is a Constitution. "States" is here used in a broader sense than in State? the second and third sections of this article. Out of whatever ter- 226, 28. ritory such States may be created, it seems to be settled that it belongs to Congress to determine when a State shall be added to the Union; and when admitted, the State becomes an equal in the Union.

For a history of the subject, see Confederation, ante, Art. XI., p. 19; Scott v. Sandford, 19 How. 395; Journals of Convention, p. 222, 305-311; 2 Pitk. Hist, ch. 11, pp. 19, 36; 1 Kent's Com. Lect. 10, pp. 197, 198; 1 Secret Journals of Congress in 1775, 368386, 433-446; 1 Tuck. Black. Com, App. 383, 386; 6 Journal of Congress, 10th Oct., 1780, p. 213; 7 Id. 1st March, 1781, pp. 4348; Land Laws U. S. Int. chap.; Story's Const. § 1316. These give the history and the early legislation in regard to the crown lands. And see Federalist, Nos. 38, 42, 43; Am. Ins. Company v. Canter, 1 Pet. 511, 542; The Ordinance of the 13th July, 1787; 3 Story's Laws, App. 2073; 1 Tuck. Black. Com. App. 278, 282; 1 St. And for a very full discussion, see Scott v. Sandford, 19 How. 395. Much of this "Dred Scott" opinion is also given in Story's Const. § 1318, note 1, pp. 193-226. As an historical review, the opinions, and the vast range of discussion which they called forth, are valuable. And see Webster's Speeches, &c., 360-364. From so vast a range, which filled the whole political literature of the country and formed the platforms of political parties, it would be useless to make citations.

clause

This clause enabled Congress to admit new States; it refers to What terriand includes new States to be formed out of this territory, expected tory did the to be thereafter ceded by North Carolina and Georgia, as well as include? new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. Scott v. Sandford (Justice Curtis), 19 How. 611, 612; 2 Story's Const. 3 ed. p. 212.

The Constitution confers absolutely on the government of the 117, 118, 178. Union the powers of making war and treaties; consequently the power of acquiring territory either by conquest or treaty. (American Insurance Company v. Canter, 1 Pet. 542; see Cerre v. Portot, 6 Cr. 336.) Scott v. Sandford, 19 How. 395; 2 Story's Const. 3d ed. p. 213; Cross v. Harrison, 16 How. 189. And see Fleming v. Page, 9 How. 614.

Confederate

The Confederate States Constitution imposed this restriction upon What rethe admission of new States into the Confederacy: "Other States striction may be admitted into the Confederacy by a vote of two-thirds of did the the whole House of Representatives, and two-thirds of the Senate States -the Senate voting by States," Paschal's Annotated Digest, p. 93, impose? Art. IV., sec. 3, cl. 1.