tiffs who were citizens of Ohio if the deceased was a citizen of another State. So far as the parties to the litigation are concerned, a State by its laws made no discrimination based on citizenship, and offered precisely the same privileges to citizens of other States which it allowed to its own. Consequently the statute did not violate the privileges and immunities conferred by the Constitution of the United States; and the right to bring suit and defend against a suit in a State court is a privilege and immunity within the provisions of that clause of the Federal Constitution."

Privileges and immunities conferred by the Federal Constitution are not denied to owners of mines by the enactment of a statute by a State which provides that only experienced mine managers and examiners shall be employed and which requires the managers and examiners of mines to provide safe places for the employees.

63 Wilmington Star Mining Co. v. Fulton, 205 U. S., 60, 73.

63

CHAPTER XLVI.

SURRENDER OF FUGITIVES.

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.

The doctrine that fugitives from justice should be surrendered by the State to which they fled, and in which they are found, is of early date in American history. The eighth Article of the New England Confederation dated the 29th of August, 1643,1 provided:

"It is also agreed that if any servant runn away from his master into any other of these confederated Jurisdiccons. That in such Case, vpon the Certyficate of one Majistrate in the Jurisdiccon out of which the said servant fled, or upon other due proofe, the said servant shalbe deliuered either to his Master or any other that pursues and brings such Certificate or proofe. And that vpon the escape of any prisoner whatsoever or fugitiue for any criminal cause, whether breaking prison or getting from the officer or otherwise escaping, upon the certificate of two Majistrats of the Jurisdiccon out of which the escape is made that he was a prisoner or such an offender at the tyme of the escape. The Majistrates or some of them of that Jurisdiccon where for the present the said prisoner or fugitive abideth shall forthwith graunt such a warrant as the case will beare for the apprehending of any such person, and the delivery of him into the hands of the officer or other person that pursues him. And if there be help required for the safe returneing of any such offender, then it shalbe graunted to him that craves the same, he paying the charges thereof."

1 Preston's Docs. Illust. Am. History, 92, 93.

A resolve of the second Colonial Congress passed in 1777 read: "If any person guilty of, or charged with treason, felony, or other high misdemeanor, in any State, shall flee from justice or be found in any of the United States he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense."

The Articles of Confederation provided: "If any person guilty of, or charged with, treason, felony, or other high misdemeanor, in any State, shall flee from justice, and be found in the United States he shall, upon demand of the Governor or executive power of the State from which he fled, be delivered up, and removed to the State having jurisdiction of his offense."'

Mr. Pinckney's plan of a Constitution was the only one which contained a provision on this subject, and it was substantially adopted by the Convention.

The Committee of Detail reported: "Any person charged with treason, felony, or high misdemeanor, in any State, who shall flee from justice and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offense."' The Convention struck out the words "high misdemeanor," and inserted the words "other crime,' in order to embrace all proper cases, as it was thought there was some doubt whether the expression "high misdemeanor" did not possess too limited a meaning. The article was then passed without opposition.5

22 Journal of Congress, 325.

3 Articles of Confederation, art. 4.

4 Journal, 460.

5 Journal, 625.

Mr. Gouverneur Morris and Mr. Randolph offered the following on the subject of treason in the Convention:

"Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of treason, it is therefore ordained, declared, and established, that, if a man do levy war against the United States within their territories, or be adherent to the enemies of the United States within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the people of his condition, he shall be adjudged guilty of treason." 5th Elliot, 449.

The word "charged" in this clause means any proceeding which a State might see fit to adopt by which a formal accusation is made against an alleged criminal. A party is charged with a crime when an affidavit is filed against him setting forth the commission of an offense and a warrant is issued for his arrest, whether a final trial may or may not be had upon such accusation. The word was used by the framers of the Constitution in its broad signification."

Treason against a State.-The words, "A person charged in any State with treason," strongly imply that, in contemplation of the framers of the Constitution, treason against a State is a crime. This can not be unless there can be treason against a State.

The question is one of importance and writers on constitutional law seem to entertain contrary opinions concerning it. Mr. Pinckney's plan defined treason to consist in levying war against the United States, or any of them, or adhering to their enemies. The report of the Committee of Detail used the same language.

When this definition was being considered by the Convention, Mr. Gouverneur Morris said: "In case of a contest between the United States and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or the other authority."

Dr. Johnson contended that treason could not be against both the United States and individual States, being an offense against the sovereignty, which can be but one in the same community. Mr. Madison remarked that as the definition of treason was against the United States, it would seem that the individual States would be left in possession of a concurrent power, so far as to define and punish treason, particularly against themselves, which might involve double punishment. Mr. Wilson and Doctor Johnson then moved that the words "or any of them" after "United States," be struck out, in order to remove the embarrassment; which was agreed to, nem. con.

Mr. Madison said this did not remove the embarrassment. The same act might be treason against the United States, as here defined, and against a particular State, according to its law.

6 Matter of Strauss, 197 U. S. 324, 331.

Doctor Johnson still thought there could not be treason against a particular State.

Colonel Mason said-The United States will have a qualified sovereignty only. The individual States will retain a part of sovereignty. An act may be treason against a particular State, which is not so against the United States."

Judge Story's comment is: "A State cannot take cognizance or punish the offence of treason against the United States, whatever it may do in relation to the offense of treason, committed exclusively against itself; if, indeed, any case can, under the Constitution, exist, which is not at the same time treason against the United States.'

An eminent author says: "The point has never been definitely settled, and is one of no small difficulty. Without some other definition, however, it is not easy to imagine a case of treason against a State which would not also be treason against the United States.""

The statute of Ohio provides: "Whoever levies war against this State or the United States, or knowingly adheres to the enemies of either, giving them aid and comfort, is guilty of treason against the State of Ohio, and shall be imprisoned in the penitentiary for life. ""10 And the Constitution of the State prohibits the Governor from pardoning one convicted of treason, but says that upon conviction for treason, he may suspend the execution of the sentence, and report the case to the General Assembly, at its next meeting, when the general assembly shall either pardon, commute the sentence, direct its execution, or grant a further reprieve.11

In many of the States treason is made a crime against the State.

Every citizen residing in a State whose Constitution or statutes contains this provision becomes subject to two separate and independent sovereignties concerning treason. It is declared by those writers who maintain there can be no treason against a State that this position is inconsist

7 Journal, 563-567.

8 2 Story on Constitution, sec. 1301.

• Walker's American Law, 162.

10 R. S. of Ohio, 6806.

11 Constitution of Ohio, art. 3, sec. 11.