some of the States should be held to weaken its force in connection with the second.

§703. Another reason for a strict interpretation of these provisions may perhaps be found in the fact that, being international in their effect and calculated to maintain in one jurisdiction the law which is originally local and territorial in another, they are contrary to the general principle of the absoluteness of the power of each sovereign within his own jurisdiction. But this reasoning may not apply if, by a proper construction of these provisions, they are identified in authority with the national municipal private law, derived, on the theory herein assumed, from a possessor of sovereign power whose dominion extends over the United States as one jurisdiction. For since the powers of the United States and those of a single State are co-ordinate within such State, these provisions in resting on the will of the integral people of the United States may have in each State the character of municipal (internal) law, though they have an international effect.

So far as these provisions may contain a grant of power to a constituted government in any of the functions of sovereignty, there may be reasons for their strict interpretation and construction, founded upon other parts of the Constitution.

§ 704. It may be supposed that there are no reported cases of a quasi-international demand and extradition of criminals as between the North American colonies, since none such are cited in any of the learned opinions which have been delivered by American courts in cases arising since the adoption of the Constitution. In Commonw. v. Deacon, 10 S. & R. 129, Tilghman, Ch. J., said that "prior to the American revolution a criminal who fled from one colony found no protection in another; he was arrested wherever found, and sent for trial to the place where the offence was committed." There are some English authorities from which it may be inferred that such quasi-international extradition was commonly recognized as legal in all parts of the empire. But it is not clear whether

'See ante, Vol. I. p. 229, n. 1.

* In the Habeas Corpus Act, 31 Car. 2, c. 2, it is enacted that no subject of this realm shall be sent prisoner to foreign parts. But, in sec. 16, there is the proviso, "If any person or persons, at any time resiant in this realm, shall have committed

this quasi-international extradition was judicially supposed to take place under a law applying exclusively to the British empire and only in the case of persons who had committed offences in some one of its different jurisdictions, or was regarded as the effect of international law, supposed to obtain among other civilized nations, and law which would also warrant the delivery to foreign governments of persons charged with having committed crimes in other countries.' The distine

any capital offence in Scotland or Ireland, or any of the islands, or foreign plantations *where he or she ought to be tried for such offence, such person or persons may be sent to such place, there to receive such trial in such manner as the same might have been used before the making of this act." In Rex v. Warner (three years before the Hab. Corp. Act), 3 Keble, 560, on motion "to set aside a rule for habeas corpus directed to the Lieutenant of the Tower, the defendant being there for murder in Barbadoes," &c.,-from the language of Hale, Ch. J., it may be inferred that it was lawful in such case to send the accused to the colony for trial. In Lundy's case, 2 Ventris, 314, anno 2 William and Mary, the judges gave their opinion, at the order of the king and Council, whether the criminal, who had committed treason, escaped to Scotland and thence had been brought to England, could be sent to Ireland, "Whether, admitting he were guilty of a capital crime by martial law, committed in Ireland, he might be sent thither from hence to be tried there, in regard to the act of habeas corpus," reciting the above clause and the proviso. The judges unanimously gave their opinion that there was nothing in the Habeas Corpus Act (supposing he had committed a capital crime by law martial in Ireland) to hinder his being sent thither to be tried thereon. Note a case of sending to Barbadoes, tempore Hale, Ch. J." (i. e., Rex v. Warner, above.) In Rex v. Kimberly (3 Geo. 2), Strange, 848; S. C. Fitzgibbon, 111 and 1 Barnardiston, 225, the prisoner had been committed by a justice of the peace to be carried to Ireland to be tried "for marrying an heiress in Ireland against her consent, which offence is made a felony," &c., and the court thought proper to remand the prisoner. In East India Co. v. Campbell, 1 Vesey Sr. 246 (1749), it is said by the court, "One may be sent from England to Calcutta to be tried there for an of

fence."

13 Geo. 3, c. 31 (1773), recites that, Whereas it frequently happens that felons and other malefactors in England escape into Scotland, and other malefactors in Scotland escape into England, "whereby their offences often remain unpunished, there being no sufficient provision by the laws of either of the two parts of the United Kingdom for apprehending such offenders and transmitting them into that part of the United Kingdom in which their offences were committed. For remedy whereof" provides that arrests may be made in either part of the Kingdom of such persons escaping from the other, upon the warrant of a justice of the peace, and on the authority thereof transferred. This statute may reasonably be taken to determine more particularly the mode in which the existing law of extradition should be carried out. In Mure v. Kay (1811), 4 Taunton, 37, on question of an arrest made in Scotland, without warrant or any requisition from the other jurisdiction, on suspicion of a forgery committed in England, Lord Mansfield said, "that the power of arrest in such a case extended over every part of the king's dominion."

It is here supposed that the law which should have determined the question in these cases was the domestic international law of the British empire. In some English cases this question has not been distinguished from the similar one arising under foreign international law. In Mure v. Kay, 4 Taunton, 37, on question of an arrest made in Scotland for forgery in England, Heath, J., supported it by the argument::—“In Lord Loughborough's time the crew of a Dutch ship mastered

tion would be important here, because it has been a question in international law whether it requires the extradition of criminals of any degree of guilt;' and it seems to be admitted that such a rule, if it exists, extends only to persons who have committed acts which are considered atrociously criminal in the jurisprudence of all civilized countries. If this quasi-international extradition between the different parts of the empire was not limited by the same standard, still from the English authorities it seems probable that it obtained only in case of persons charged with crimes capitally punished by the English code of criminal law. This, if it can be established, seems to be the only characteristic of the intercolonial usage which can be referred to in determining the extent of the words of the constitutional provision.

the vessel and ran away with her and brought her into Deal, and it was held we might seize them and send them to Holland, and the same has been the law of all civilized countries." In Rex v. Kimberly, Barnardiston, 225, Sergeant Corbet mentioned Rex v. Hutchinson, 3 Keble, 785:-"On habeas corpus it appeared that the defendant was committed to Newgate on suspicion of murder in Portugal, which, by Mr. Attorney, being a fact out of the king's dominions, is not triable by commission, upon 35 H. 8, cap. 2, § 1, N. 2, but by a constable and marshal, and the court refused to bail him." The statute 35 H. 8, c. 2, seems to have been the authority for trying persons in England for crimes committed in the colonies. See 1 Ventris R. 349: "Colepepper's case. He was indicted for high treason, for raising rebellion in Caroline, one of the king's foreign plantations in America. Whereupon he was this term tried at the bar and acquitted." Note to the report: "By 35 H. 8, c. 2, foreign treasons may be either tried by special commission or on the king's bench by a jury of the county where that court sits. Vide Co. 1 Inst. 261, b. 3 Inst. 11." It was argued in Rex v. Warner (27 Car. 2); 3 Keble, 560, that the act "doth not extend to foreign murders within the countries of the king's jurisdiction, but of foreign countries. Hales, Ch. J., said that the statute doth extend to Ireland and other the king's jurisdiction as well as foreigners, and so is 1 Anders. 262, pl. 269." From the same case it may be gathered that the act extended to petty treasons. This practice was one of the colonial grievances, as is well known. Declaration of Independence:-" For transporting us beyond seas to be tried for pretended offences."

See the various authorities in 1 Phillimore's Int. Law, §§ 362-364; Story's Confl. of L., ch. XVI.; 1 Kent's Com, 36, and the leading cases; Commonwealth v. Deacon, 10 S. & R. 125; Commonwealth v. Green, 17 Mass. 575; Washburn's case, 4 Johns. Ch. R. 106; Holmes' case, 12 Verm. 631; Holmes v. Jennison, 14 Peters, 540. Coke is an authority against this extradition, in a passage (which should have been cited in the first volume after § 258, on the question of fugitive slaves), 3 Inst. 180:-"It is holden and so it hath been resolved that divided kingdoms under several kings in league with one another are sanctuaries for servants or subjects flying for safety from one kingdom to another, and upon demand made by them are not by the laws and liberties of kingdoms to be delivered; and this, some hold, is grounded upon the law in Deuteronomy-non trades servum domino suo, qui ad te confugerit." In the case of slaves this rule should, it would seem, operate, whether slavery does or does not exist under the internal law of the forum. Mr. Wynne, Eunomus, Dial. 3, sec. 67, excepts to this dictum, as to criminals; and see Tighlman, J., in 10 S. & R. 128.

§ 705. The Fourth of the Articles of Confederation, of 1778, was cited in the extract from Judge Taney's opinion.' The word misdemeanor, which is there used, or even high misdemeanor, might, if alone, be taken to mean an offence less heinous than one called a crime. But, by the use of the word other, it is classed with treason and felony. The same word other being retained in the provision in connection with the substituted word crime, in like manner seems to qualify that term by associating it with treason and felony. But why was crime mentioned at all, unless to designate something which could not be classed with treason or felony?"

§ 706. As used in English jurisprudence, the word felony indicates some act to which a high degree of guilt, under the legal code of morals, is attached, and which is attended by a known degree of punishment. Treason and crime are words not etymologically peculiar to the English language, and are popularly as well as technically used to designate violations of legal obligation which the state will punish irrespectively of remedies which the law may give to private persons. In treason, the public or political character of the right which has been infringed by the act so designated is indicated. In crime, an injury to either public or private rights may be implied. Between parties equally inheriting the language of English jurisprudence a question of the etymological meaning of the words cannot be made. The question of the application of the words must really be a question of the existence of the obligations whose violation may be treason, felony, or crime, and of the existence of the rights correlative to those obligations. Hence some common standard of legal rights and obligations, which may be recognized irrespective of the several laws of the different States, must be sought for to de

1

2 Dictum, 81 Ver. 287.

1 Ante, p. 384. Edmund Randolph's Opinion in the Virginia and Pennsylvania case. 4 Bl. Comm. 94:-"Felony, in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and goods." A. v. B., R. M. Charlton's R. 228.

'Clark's case, 9 Wend. 212:-" An offence made indictable by statute is a crime within the meaning of the Constitution and laws of Congress on the subject." Ib. 222:-Crime is synonymous with misdemeanor ;-citing 4 Bl. c. 5.

See the use of the term "subject matter," in Greenough's case, 31 Verm.

termine what may be treason, felony, or crime, in view of this provision.

Such a standard can be developed only by the history of the laws of the colonies and States.' It seems competent to argue that the personal law of slavery and of property in respect to slaves had prevailed under the concurrent juridical action of all the colonies, and, in each, with the support of the imperial or national authority, until the revolution; that although, when property in slaves had ceased to be supported by universal jurisprudence, it was no longer supported by the national law having quasi-international extent, yet it continued in each colony as an effect of its local law, jus proprium, and, therefore, had the same jural character as before; that, even if it had, by one or more States, been abolished as being contrary to natural reason or justice, and not simply on the ground of expediency, yet such abolition was not, necessarily, a denial, even by such States, of its jural character in other States wherein it continued, or an assertion that in such States, also, it was contrary to natural reason or justice; that, simply on the principle of the continuation of laws, it must be presumed, in an international compact, that the parties continue to recognize the jural character of each other's laws; that a presumption in favor of the jural character of relations established by the laws of other states is, in fact, one of the elementary or axiomatic principles of jurisprudence; that, before an international compact should be interpreted on the ground that the jural character of slavery in the slaveholding States had been denied by the non-slaveholding States, some positive declarations to that effect, anterior to or contemporary with the formation of the compact, should be shown; that, so far from there being any such declarations, the written and unwritten jurisprudence of the non-slaveholding States contains many recognitions of the validity of the slave laws of the slaveholding States; and that, above all, the Constitution itself contains some provisions which, as national private law,

By such a principle Governor Seward appears to have refused to deliver up a person on the charge, in Pennsylvania, of fornication; and another, charged in New Hampshire with adultery. 2 Seward's Works, 479. 'Ante, §§ 33, 119.

2

Compare ante, § 316.