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CHAPTER XXXIII.

RELATION OF THE STATES TO EACH OTHER.

187. References.

J. Story, Constitution, §§ 1302-1313; J. R. Tucker, Constitution, §§ 307– 309; T. M. Cooley, Constitutional Limitations, * 397 ; T. M. Cooley, Constitutional Law, ch. x; H. C. Black, Constitutional Law, ch. ix; Kentucky v. Dennison (1860, 24 Howard, 66); Ex parte Reggel (1885, 115 U. S. 642; McClain's Cases, 867); Lascelles v. Georgia (1893, 148 U. S. 537 ; McClain's Cases, 872); McCready v. Virginia (1876, 94 U. S. 391); Ward v. Maryland (1870, 12 Wallace, 418; Thayer's Cases, 1410); Paul v. Virginia (1868, 8 Wallace, 168; McClain's Cases, 855; Thayer's Cases, 1928); Blake v. McClung (1898, 172 U. S. 238; McClain's Cases, 859).

188. States Independent; Inter-State Comity.

As a general proposition it may be said that the states are independent of each other, and so far as they can have any relations to each other or to the citizens of another state those relations are determined by the provisions of the federal constitution. The laws of each state have force only within its limits. The extent to which rights and obligations arising within one state are to be recognized in another is determined in general by the same rules of comity which apply between foreign governments; that is, the states are said to be foreign to each other in deciding the effect to be given in one state to the laws of another.

Nevertheless, just as between governments entirely foreign to each other, some principles obtain to which the term "private international law" or "conflict of laws" are usually applied, thus contracts made in one state and valid where made are usually recognized as valid when it is sought to enforce or call them in question in another state. But the general subject of conflict of laws as affecting the validity of

§ 189]

Extradition of Criminals.

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contracts, the liability for injury done to persons or property, the recognition of marriages and divorces in another state and like matters, are beyond the scope of this treatise.

The fact that the laws of one state cannot be enforced in another and that the authority of one state cannot be in any way exercised within the limits of another is to be especially borne in mind with reference to crimes against its laws. A crime is to be punished if committed against the laws of a state only within the limits of that state, and the courts of another state cannot take cognizance of such a crime for purposes of punishment; nor has any state the authority to send its officers into another state for the purpose of arresting and bringing back a fugitive from justice, save as provided by the federal constitution.

189. Extradition of Criminals.

The federal constitution does provide, however, 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" (Art. IV, § 2, ¶ 2). The purpose of such provision is that the fugitive may be duly tried and punished. Between foreign governments the return of fugitives from justice fleeing from one country to another may be provided for by treaty. But as the states cannot make treaties with each other, it was proper that, as between states, the matter be regulated by the constitution. It is to be noticed that while it is made the duty of the executive of any state to deliver up a fugitive from justice upon demand of another state, there is no method provided in the constitution by which such duty may be enforced; and though Congress has by statute regulated the matter (1793) it has never taken up the question of a refusal by a state executive to follow out that procedure.

In each state there are statutory provisions with reference to demanding the return of fugitives from justice who have escaped

into another state, and for extraditing fugitives found in the state whose return is demanded by the executive authority of another state. It is regarded as proper, however, for the executive upon whom the demand is made for the extradition of a fugitive from justice to inquire into the question whether such person is in fact a fugitive, that is, whether he has come into the state from another state where he is charged with having committed a crime, and until it appears that he is such fugitive, and that he has been in a proper proceeding charged with a crime in the state demanding his return, he will not be delivered up.

The crime for which a fugitive should be returned on proper demand may be any crime under the laws of the state demanding his return, whether it be a crime under the laws of the state from which his return is demanded or not (Kentucky v. Dennison), and the state to which he is returned may put him on trial for any offence which he has committed in that state, though it be a different crime from that for which he has been brought back (Lascelles v. Georgia). Although the constitutional provision does not refer to the territories, Congress has by statute covered such cases of fugitives (Ex parte Reggel).

The succeeding paragraph of the federal constitution relating to persons held to service or labor in one state under the laws thereof who have escaped into another, and requiring that such persons shall not be discharged from such service or labor by any laws or regulations of another state, but shall be delivered up on claim of the party to whom such service or labor may be due, was evidently intended primarily to apply to slaves escaping from one state to another; and fugitive slave laws were passed by Congress in order to make effectual this provision. But since the abolition of slavery throughout the United States by the adoption of the Thirteenth Amendment, this provision has ceased to have any practical value, though it doubtless applies to apprentices, and perhaps might apply to persons convicted of crime in one state and sentenced to labor as a punishment, but who have subsequently escaped to another

state.

§ 190]

Privileges and Immunities.

190. Privileges and Immunities of State Citizenship.

271

Even in the absence of express treaty comity between countries foreign to each other usually involves during time of peace the privilege of the subjects of one country to come into the territory of the other, to conduct business and acquire property, and to have the protection of the judicial tribunals to substantially the same extent as enjoyed by subjects of the latter; especially is this true where the subjects of one country become permanent residents of the other, although they may not acquire citizenship. The only substantial exception to this rule of comity is as to the ownership of real estate. By the law of England, as it existed when the colonies became independent, an alien could not, in general, acquire title to real estate by inheritance. In many of the states the disability of aliens to acquire and hold real estate has been removed, while in others it has been preserved.

In order that such questions as this might not be left uncertain as between the states, and dependent on comity merely, it was provided in the federal constitution that "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states" (Const. Art. IV, § 2, T 1). The manifest result is that all the privileges and immunities enjoyed by the citizens of a state by virtue of the fact of citizenship may also be enjoyed by citizens of any other state; and this involves a prohibition of any discrimination in the laws of a state against citizens of other states as compared with the state's own citizens. Thus a state statute is unconstitutional which restricts the pursuit of some particular business to citizens of the state and prohibits citizens of other states from engaging in such business.

But political privileges, such as the right to vote and hold. office and the privilege of serving on juries and the like, can be limited to citizens of the state, and a person going from one state to another does not carry into the latter state the privileges which he enjoyed in the former, for these are matters to be regulated by each state for itself. The privilege of practising law in a

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state may be limited, undoubtedly, to persons who are citizens of the state. There are some privileges also, such as the right to fish in the public waters and to hunt game within the state limits (McCready v. Virginia), which are regarded as incident to the enjoyment by the citizens or inhabitants of the state of the public property belonging to the state as representing its people, and the state may exclude from the enjoyment of these privileges persons who are not inhabitants of the state. The following are privileges and immunities of citizenship which cannot be denied by a state to citizens of other states: protection by the government; enjoyment of life and liberty; the right to acquire and possess property, subject, of course, to the general police power, which, however, must be exercised without discrimination as between citizens of the state and citizens of other states; the right of a citizen of one state to pass through or reside in any other state; the right to institute and maintain actions in the courts of the state (Ward v. Marylana).

The equality of privileges thus guaranteed is equality with citizens, that is, with natural persons who are entitled to citizenship in the state in which they have their permanent residence. Corporations are artificial persons, and while they are regarded as having in many respects the same rights as natural persons and protected by the guaranties of rights which are accorded to natural persons, they are not and cannot be citizens in the full sense and meaning of the term. Therefore, a state is not bound by the provisions of the federal constitution to accord to corporations created in other states all the privileges granted to state corporations, much less all the privileges and immunities possessed by natural citizens. While it is usual for a state to allow corporations created in other states to carry on business in that state, it is not a violation of the provision of the federal constitution to impose restrictions on such foreign corporations which are not imposed on corporations created in the state, or to discriminate as against foreign corporations in favor of domestic corporations; and it is regarded as permissible to a state to exclude foreign corporations altogether or to prescribe special conditions on which all foreign corporations or foreign

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