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XXIII. RECIPROCAL RIGHTS.

Public acts

and records of each tled to be nized in

state enti

fully recog

other

states.

§ 538. By the first section of the fourth article of the constitution, it is provided that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." Numerous decisions have been made on the construction of this clause which have been elsewhere analyzed. It is sufficient here to say, that in construing this and kindred clauses in the constitution it is important to keep in mind that the object of the provision was to secure between the states absolute freedom of intercourse. That which has been the beatific vision of publicists and political economists of the old world was to be brought into actual operation in the new world. Whatever might be the measures of encroachment, of exclusion, of non-intercourse, of distrust, of hostility between the several sovereignties of Europe, there was to be absolute freedom of trade and intercourse, and entire reciprocal official trust, between the sovereignties which were to occupy North America between the St. Lawrence and the Gulf of Mexico. We have already noticed the provisions precluding the states from forming foreign alliances or engaging in war, unless actually invaded, or imposing any tax, or toll, on whatever may cross from state to state. These are prohibitions touching the negative side of this freedom of intercourse. We now come to the affirmative side, involving commands to action; and the first of these to be noticed is the clause now before us. It is meant to put in an obligatory shape a rule of comity which in private international law sovereigns have felt themselves at liberty to expand or relax at discretion." So far as concerns the terms in which this reciprocity is here imposed, the following distinctions may be noticed: (1) Judgments of sister states cannot be disputed collaterally.3 (2) Nil

1 See Whart. on Ev., §§ 808 et seq.
2 Whart. Con. of Laws, §§ 646 et seq.

3 Whart. on Ev., §§ 806-8.

debet cannot be pleaded to such judgments. The only plea is nul tiel record. (3) Want of jurisdiction, however, may be set up to a suit on such a judgment, and as indicating such want of jurisdiction, a defendant may aver by plea, that he was not an inhabitant of the state rendering the judgment, had not been served with process, and did not appear, or authorize an appearance.3

Question

whether
extra-terri-
torial ser-
vice is valid
is still
open.

$539. At a period when the practice of serving writs extraterritorially was rare and exceptional, the tendency of opinion was to the effect that a judgment obtained on such service was not internationally valid. In jurisdictions, however, where this prac tice is adopted, it may be questioned whether such service can now be regarded as inoperative. And on principle there is no reason why service outside of a state should not be as good as service in such a state in all cases where the defendant is not thereby subjected to distinctive inconvenience." 540. By the first clause of the second section of article four "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the tled to im- several states." The first question to be here determined is as to what citizenship means; and the answer is that the term is not to be so extended as to cover anything more than those general rights of asylum and of equality in the eye of the law which state citizenship, under a republican constitution, gives. Citizenship, also, is to be distinguished from domicil. A person who visits a state for only temporary purposes may be a citizen; but he is only domiciled in case his intent is to take up a permanent resi

Citizens of each state

to be enti

munities of

citizens generally.

Mills v. Duryea, 7 Cranch, 481; Christmas v. Russell, 5 Wall. 290, and other cases cited; Whart. Conf. of Laws, § 659.

2 D'Arcy v. Ketchum, 11 How. 165; Knowles v. Gas Co., 19 Wall. 58; Hill v. Mandenhall, 21 Wall. 453; Folger v. Ins. Co., 99 Mass. 267, and other cases cited; Whart. Conf. of Laws, § 660; Bowler v. Huston, 30 Grat. 356. Whart. on Ev., § 796; Hall v. Lan

ning, 91 U. S. 160, and other cases cited; Whart. Conf. of Laws, § 660.

See supra, §§ 283, 343, 344; Pennoyor v. Neff, 95 U. S. 714; Boswell v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; see Harris v. Harris, 61 Ind. 117, and article in Virginia Law Journal, June, 1880.

5 See supra, §§ 283, 344; Whart. Conf. of Laws, § 713.

dence. The privileges of citizenship in a state entitle the citizen to all the immunities secured by the bill of rights. The privileges of domicil entitle the domiciled citizen of a state to have his status determined by the law of his domicil. But neither citizenship in a sister state, nor domicil in a sister state, entitles a person to exercise in another state privileges which are inconsistent with the special policy of the latter state.2 On the other hand, any discrimination, by a state law, imposing special fines upon citizens of another state, are invalid.3

Fugitives

from justice to be sur

rendered.

541. It is further provided that "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." It is now settled that the term "crime" includes indictable offences of all grades. The words are "felony, or other crime." All crimes that are not felonies, must be misdemeanors. "Other crimes," therefore, must here include misdemeanors. But the word crime does not include offences not strictly criminal; e. g., bastardy.

§ 542. In order to satisfy the conditions of the constitution, the party against whom the process is sought must have "fled" from the jurisdiction of the demanding "fleeing" state. If he was never in such state, he cannot be

1 Supra, § 254.

Must be

from justice.

"The word 'crime' in the clause of

2 Whart. Conf. of Laws, § 104 b; the constitution which has been quoted, supra, § 267. embraces every act forbidden and made

* See supra, §§ 418 et seq.; infra, §§ punishable by the law of the state, and 588, 594.

4 Const., art. iv., § 2, cl. 2.

5 Kentucky v. Dennison, 24 How. 66; Taylor v. Taintor, 16 Wall. 366. 16486 Cannon, in re, SupCo Mich. 1882.

A misdemeanor punishable by a fine is within the purview of the constitution. Morton v. Skinner, 48 Ind. 123. Nor is there any difference in this respect between statutory and common law crimes. Hughes, in re, Phill. N. C. L. 57.

the right of a state to demand the sur

render of fugitives from justice extends to all classes of the violation of its criminal law. The obligation to surrender for an act which is made criminal by the law of the demanding state, but which is not criminal in the stateupon which the demand is made, is the same as if the alleged act was a crime by the laws of both." People v. Brady, 56 N. Y. 182; see Clark, in re, 9 Wend. 212.

said to have "fled" from it; and this precludes extradition process for offences by an absent principal through an agent, or by a party operating through an extra-territorial mechanical agency. But it is enough if the defendant was in the state at the time of the crime. His motives for leaving will not be inquired into.2

"Demand" must be based on

§ 543. The "demand," to justify a surrender, must be on a prima facie case; and this has been held to be adequately made out by an indictment, or by a complaint duly established by affidavit such as would prima facie judicialcase sustain an arrest in a home procedure. These of crime. papers are presented to the executive who is asked to issue a demand, and are attached by him to the demand. They are not, however, so far as jurisdiction is concerned, conclusive, but may be inquired into in this respect by the executive of the asylum state, or by courts of such state on habeas corpus. But while the papers are not conclusive as to jurisdiction, they cannot be impeached on their merits. If an offence is duly charged by a governor having jurisdiction, the truth of the charge (aside from the question of identity) cannot be gone into.5

1 Jackson's Case, 12 Am. Law Rev. 602; Smith, ex parte, 3 McLean, 121; Greenough, in re, 31 Vt. 279; State v. Voorhees, in re, 3 Vroom (32 N. J. L.) 141; Jones v. Leonard, 50 Iowa, 106; and other cases cited Whart. Crim. Pl. & Pr., § 31.

vital importance; it might be worth
his life. After delivery to the demand-
ing state he could not successfully plead
the illegality of his extradition in bar
of the prosecution." Kerr, ex parte,
Chicago Legal News, Sept. 29, 1883.
3 Kingsbury's Case, 106 Mass. 223;

2 Voorhees, in re, 32 N. J. 141; U. S. People v. Brady, 56 N. Y. 182. v. O'Brien, 3 Dill. 381.

See Larney's Case, Chicago Legal News, March 11, 1882; Wilcox v. Nolze, 34 Oh. St. 520.

"It seems plain that a person arrested as a fugitive from justice who never had been corporeally in the demanding state [there have been such cases] would have a right to be heard on the legality of his extradition in the court of last resort before his delivery. As to him, it would be a case arising under the constitution and laws of the United States. It might be of

Davis's Case, 122 Mass. 324; Voorhees, in re, 32 N. J. 141.

That affidavits, when taking the place of indictment, must be special and full, see Smith, ex parte, 3 McLean, 121; People v. Brady, 56 N. Y. 184; and other cases cited Whart. Crim. Pl. & Pr., § 29.

That defendant's identity must ap-
pear, see Whart. Cr. Pl. & Pr., § 35;
Snyder, ex parte, 64 Mo. 58; State v.
Swope, 72 Mo. 399.

5 People v. Brady, 56 N. Y. 182.
"As the case before us is directly

544. In some states by statute, in others by comity, arrest may be had in advance of a requisition. The prisoner is then kept a reasonable time to await the requisition and warrant.1

within the law of congress, our conclusion is that the indictment produced is sufficient evidence that the party is charged with a crime known to the laws of Georgia, and that no valid exception to the order of the governor exists on this ground." Briscoe, in re, 51 How. Pr. 422.

"But whether he is guilty or not, is not the question to be decided here. It is whether he has been properly charged with guilt, according to the constitution and act of congress. It is not necessary to be shown that such person is guilty; it is not necessary, as under the comity of nations, to examine into the facts alleged against him constituting the crime; it is sufficient that he is charged with committing the crime." Clark, in re, 9 Wend. 212.

"The warrant of the governor of the commonwealth is prima facie evidence at least, that all necessary legal prerequisites have been complied with, and if the previous proceedings appear to be regular, is conclusive evidence of the right to remove the prisoner to the state from which he fled." Com. v. Hall, 9 Gray, 262; Kingsbury's Case, 106 Mass. 223; Brown's Case, 112 id. 409; Davis's Case, 122 Mass. 324.

Arrest may be had in

advance of requisition.

constitution referred to required that the fugitive should be surrendered upon the demand of the executive of the state in which the crime is charged to have been committed, it did not otherwise, or in the absence of the executive demand, undertake to define the duties or limit the authority of the state within which the fugitive from justice might be found. The constitution of the United States does not assume to deal with the question before the proper executive demand shall have been made, while upon the other hand the statute provides for the detention of the fugitive for a reasonable length of time in advance of and to afford an opportunity for the executive demand upon which the surrender is made. The paramount constitutional duty of the state to make the surrender upon proper executive demand, was in no wise in conflict with its reserved power to deal with the fugitive in the absence of such a demand." Cubreth, in re, 49 Cal. 436, Jan. 1875.

"I am of opinion, both upon principle and authority, that a fugitive from justice from either of the United States may, under the provisions of the constitution, be arrested and detained in this state preparatory to his surrender, before a requisition is actually made by the executive of the state where the crime was committed. It is an exercise of power essential to the full operation of the constitution, and has been sanctioned by a long and 317-324. uniform course of practice." Per Cur. "That while the provision of the Fetter, in re, 3 Zabr. 311.

1 Hurd, Habeas Corpus, § 636; Ross, er parte, 2 Bond, 252; and cases cited Whart. Cr. Pl. and Pr., § 29. As to lawfulness of arrest, see State v. Brewster, 7 Vt. 118; Miles, in re, 52 Vt. 609. See, generally, Spear on Extradition, for details of practice. And see §§

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