CH. XL.] PRIVILEGES OF CITIZENS. 673
PRIVILEGES OF CITIZENS--FUGITIVES--SLAVES.
§ 1798. THE fourth article of the constitution contains several
provisions, some of which have been already considered. Among these are,
the faith and credit to be given to state acts, records, and judgments, and
the mode of proving them, and the effect thereof; the admission of new
states into the Union; and the regulation and disposal of the territory,
and other property of the United States.1 We shall now proceed to those,
which still remain for examination.
§ 1799. The first is, "The citizens of each state shall be
entitled to all
privileges and immunities of citizens in the several states." There was an
article upon the same subject2 in the confederation, which declared, "that
the free inhabitants of each of these states, paupers, vagabonds, and
fugitives from justice excepted, shall be entitled to all privileges and
immunities of free citizens in the several states; and the people of each
state shall, in every other, enjoy all the privileges of trade and
commerce, subject to the same duties, impositions, and restrictions, as the
inhabitants thereof respectively," &c.3 It was remarked by the Federalist,
that there is a strange confusion in this language. Why the terms, free
inhabitants, are used in one part of the article, free citizens ,in
another, and people in another; or what is meant by superadding
1 See ante, Vol. III. § 1211 to 1230, § 1308 to 1315, and §
1316 to 1324.
2 See 1 Tucker's Black. Comm. App. 365.
3 Confederation, Art. 4.
674 CONSTITUTION OF THE U. STATES. [BOOK III.
to "all privileges and immunities of free citizens," "all the privileges of
trade and commerce," cannot easily be determined. It seems to be a
construction, however, scarcely avoidable, that those, who come under the
denomination of free inhabitants of a state, although not citizens of such
state, are entitled, in every other state, to all the privileges of free
citizens of the latter; that is to greater privileges, than they may be
entitled to in their own state. So that it was in the power of a
particular state, (to which every other state was bound to submit,) not
only to confer the rights of citizenship in other states upon any persons,
whom it might admit to such rights within itself, but upon any .persons,
whom it might allow to become inhabitants within its jurisdiction. But
even if an exposition could be given to the term, inhabitants, which would
confine the stipulated. privileges to citizens alone, the difficulty would
be diminished only; and not removed. The very improper power was, under
the confederation, still retained in each state of naturalizing aliens in
every other state.1
§ 1800. The provision in the constitution avoids all this
is plain and simple in its language; and its object is not easily to be
mistaken. Connected with the exclusive power of naturalization in the
national government, it puts at rest many of the difficulties, which
affected the construction of the article of the confederation.3 It is
obvious, that. if the citizens of each state were to be deemed aliens to
each other, they could not take, or hold real estate, or other privileges,
1 The Federalist, No. 42. See also Id. No. 80; ante, Vol. III. §
2 See Journ. of Convention, 222, 302.
3 But see 1 Tuck. Black. Comm. App. 365.
CH. XL.] FUGITIVE CRIMINALS. 675
except as other aliens. The intention of this clause was to confer on
them, if one may so say, a general citizenship; and to communicate all the
privileges and immunities, which the citizens of the same state would be
entitled to under the like circumstances.1
§ 1801. The next clause is as follows: "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." A provision, substantially the same, existed
under the confederation.2
§ 1802. It has been often made a question, how far any
nation is, by the
law of nations, and independent of any treaty stipulations, bound to
surrender upon demand fugitives from justice, who, having committed crimes
in another country, have fled thither for shelter. Mr. Chancellor Kent
considers it clear upon. principle, as well as authority, that every state
is bound to deny an asylum to criminals, and, upon application and due
examination of the case, to surrender the fugitive to the foreign state,
where the crime has been committed.3 Other distinguished judges and
jurists have entertained a different opinion.4 It is not uncommon for
treaties to contain mutual stipulations for the surrender of
1 Carfied v. Coryell, 4 Wash. Cir. R. 371; Sergeant on Coast. ch. 31, p.
384, (ch. 33, p. 393, 2 edit.); Livingston v. Van Ingen, 9 John. R. 507.
2 Confederation, Art. 4.
3 1 Kent's Comm. Lect. 2, p. 36, (2 edit. p. 36, 37); Matter of Washburn,
4 John. Ch. R. 106; Rex v. Ball, 1 Amer. Jurist, 297; Vattel, B. 2, § 76,
77; Rutherforth, Inst. B. 2, ch. 9, § 12.
4 Com'th. v. Deacon, 10 Sergeant & Rawle, R. 125; 1 American Jurist. 297.
676 CONSTITUTION OF THE U. STATES. [BOOK III.
criminals; and the United States have sometimes been a party to such an
§ 1803. But, however the point may be, as to foreign
nations, it cannot be
questioned, that it is of vital importance to the public administration of
criminal justice, and the security of the respective states, that
criminals, who have committed crimes therein, should not find an asylum in
other states; but should be surrendered up for trial and punishment. It is
a power most salutary in its general operation, by discouraging crimes, and
cutting off the chances of escape from punishment. It will promote harmony
and good feelings among the states; and it will increase the general sense
of the. blessings of the national government. It will, moreover, give
strength to a great moral duty, which neighbouring states especially owe to
each other, by elevating the policy of the mutual suppression of crimes
into a legal obligation. Hitherto it has proved as useful in practice, as
it is unexceptionable in its character.2
§ 1804. The next clause is, "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 labour;
but shall be delivered up on the claim of the party, to whom such service
or labour may be due."3
§ 1805. This clause was introduced into the constitution
solely for the
benefit of the slave-holding states,
1 See Treaty with Great Britain of 1794, art. 27; United States v. Nash,
Bees, Adm. R. 266.
2 See 1 Kent's Comm. Lect. 2, p. 36, (2 edit. p. 36.) See Journ. of
Convention, 222, 304.
3 This clause in its substance was unanimously adopted by the Convention.
Journ. of Convention, 307.
CH. XL.] FUGITIVE SLAVES. 677
to enable them to reclaim their fugitive slaves, who should have escaped
into other states, where slavery was not tolerated. The want of such a
provision under the confederation was felt, as a grievous inconvenience, by
the slave-holding states,1 since in many states no aid whatsoever would be
allowed to the owners; and sometimes indeed they met with open resistance.
In fact, it cannot escape the attention of every intelligent reader, that
many sacrifices of opinion and feeling are to be found made by the Eastern
and Middle states to the peculiar interests of the south. This forms no
just subject of complaint; but it should for ever repress the delusive and
mischievous notion, that the south has not at all times had its full share
of benefits from the Union.
§ 1806. It is obvious, that these provisions for the arrest
and removal of
fugitives of both classes contemplate summary ministerial proceedings, and
not the ordinary course of judicial investigations, to ascertain, whether
the complaint be well founded, or the claim of ownership be established
beyond all legal controversy. In cases of suspected crimes the guilt or
innocence of the party is to be made out at his trial; and not upon the
preliminary inquiry, whether he shall be delivered up. All, that would seem
in such cases to be necessary, is, that there should be prima facie
evidence before the executive authority to satisfy its judgment, that there
is probable cause to believe the party guilty, such as upon an ordinary
warrant would justify his commitment for trial.2 And in the cases of
fugitive slaves there would seem to be the same necessity of requir-
1 1 Tuck, Black. Comm. App. 366. See also Serg. on Const. ch. 31 p. 385,
(ch. 33, p. 394 to 398, 2d edit.) Glen v. Hodges, 9 John. R. 67;
Commonwealth v. Halloway, 2 Serg. & Rawle R. 306.
2 See Serg. on Const. ch. 31 p. 385, 2d edit. ch. 33, p. 394.)
678 CONSTITUTION OF THE U. STATES. [BOOK III.
ing only prima facie proofs of ownership, without putting the party to a
formal assertion of his rights by a suit at the common law. Congress
appear to have acted upon this opinion; and, accordingly, in the statute
upon this subject have authorized summary proceedings before a magistrate,
upon which he may grant a warrant for a removal.1
1 Act of 12 Feb. 1793, ch. 51, (ch. 7); Serg. on Const. ch. 31, p. 387,
(2d edit ch. 33, p. 397, 398); Glen v. Hodges, 9 John. R. 62; Wright v.
Deacon, 5 Serg. & R. 62; Commonwealth v. Griffin, 2 Pick. R. 11.