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Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Privileges of Citizens – Fugitives – Slaves
Sec. 1798. THE fourth article of the constitution contains several important 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.
Sec. 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,” etc.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 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.4
Sec. 1800. The provision in the constitution avoids all this ambiguity.5 It 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.6 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, 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.7
Sec. 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.8
Sec. 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.9 Other distinguished judges and jurists have entertained a different opinion.10 It is not uncommon for treaties to contain mutual stipulations for the surrender of criminals; and the United States have sometimes been a party to such an arrangement.11
Sec. 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.12
Sec. 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.”13
Sec. 1805. This clause was introduced into the constitution solely for the benefit of the slave-holding states, 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,14 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.
Sec. 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.15 And in the cases of fugitive slaves there would seem to be the same necessity of requiring 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.16
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.
4. The Federalist, No. 42. See also Id. No. 80; ante, Vol. III. § 1098.
5. See Journ. of Convention, 222, 302.
6. But see 1 Tuck. Black. Comm. App. 365.
7. 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.
8. Confederation, Art. 4.
9. 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.
10. Com’th. v. Deacon, 10 Sergeant & Rawle, R. 125; 1 American Jurist. 297.
11. See Treaty with Great Britain of 1794, art. 27; United States v. Nash, Bees, Adm. R. 266.
12. See 1 Kent’s Comm. Lect. 2, p. 36, (2 edit. p. 36.) See Journ. of Convention, 222, 304.
13. This clause in its substance was unanimously adopted by the Convention. Journ. of Convention, 307.
14. 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.
15. See Serg. on Const. ch. 31 p. 385, 2d edit. ch. 33, p. 394.)
16. 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.