New Jersey, Maryland, and Delaware, upon the production of a writ signed by the chief justice of the State from which the fugitive escaped and indorsed by the chief justice of the State where he was found, both before and after the adoption of the Articles of Confederation.1 That a similar custom was general among the British colonies in North America is further evidenced by the early legislation of the Canadian provinces. And the practice was in accordance with the early decisions of the English courts.3

4

§ 519. Articles of Confederation. In the fourth article of the Articles of Confederation we find the following provision: "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 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 offence." This provision appears to have introduced a new method of recovering fugitives from justice, and for this reason and because it was not as comprehensive as the previous practice, it does not seem to have been regarded as exclusive. Thus we find that in 1789, Chief Justice Brearly of New Jersey wrote to Governor Mifflin of Pennsylvania that the powers given by the Articles of Confederation to the State executive were " not necessary to be exercised in ordinary cases."5 The imperfections in the provision in the Articles of Confederation as tested by the previous and subse

1 The first person to set forth the history of the rendition of fugitive criminals before the adoption of the Articles of Confederation, and between that time and the formation of the Constitution, was Mr. I. T. Hoague, who contributed to the American Law Review (vol. xiii. p. 210) a remarkably thorough, intelligent and able discussion of that subject. See also Minutes of Council of Penn., i. 101; Id. 147; Hurd on Habeas Corpus, 598, 2d ed. Id. 292; Penn. Archives, x. 291; Id. 290, 320, 324, 530, 531; Minutes of Council of Penn., xiii. 270; Id. xv. 499; Id. iii. 108; Id. v. 94; Id. ix. 96; Id. vi. 596, 604; Id. xvi. 14; Penn. Archives, x. 354.

2 Supra.

8 Rex v. Lundy, 2 Vent. 314; Rex v. Kimberly, 2 Stra. 848.

4 By an act of 1779, the legislature of Virginia gave to this provision a statutory form in that State. Henning's Statutes at Large, vol. x. p. 130.

5 13 Am. Law Rev., pp. 190, 191.

quent practice led to the insertion of the broad and unconditional clause in the Constitution. This clause, as reported by the committee on detail of the constitutional convention, contained the words "high misdemeanor," as in the Articles of Confederation. But, because these words were capable of a construction too technical and limited, the convention substituted for them the words "other crime," which are of general import.1

§ 520. Formulation of Constitutional Provision. By the published records we find that on Tuesday, May 29, 1787, Mr. Charles Pinckney laid before the convention that formulated the Constitution of the United States a scheme which he had prepared of a Federal government. Of this scheme the twelfth article read as follows: 3.

"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Any person, charged with crimes in any State, fleeing from justice to another, shall, on the demand of the Executive of the State from which he fled, be delivered up, and removed to the State having jurisdiction of the offence."

On August 6, 1787, Mr. Rutledge delivered a report of the Committee on Detail, containing a draft of a constitution.* In this draft the twelfth article of the Pinckney project was separated into two, numbered 14 and 15. Article 14 contained the same clause as the Pinckney draft on the privileges and immunities of citizens. Article 15 read as follows:

"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 offence." 5

On Tuesday, August 28, Mr. Madison makes the following entry :

1 13 Am. Law Rev., p. 180 et seq.; 5 Elliott, Deb. 381, 2 Mad. Papers, 1240; 5 Elliott, Deb. 487, 3 Mad. Papers, 1447; 5 Elliott, Deb. 128, 132, 2 Mad. Papers,

745; 5 Elliott, Deb. 584, 589.

2 2 Mad. Papers, 735.

4 Id. 1226.

3 Id. 745.

5 Id. 1240.

"Article 15, being then taken up, the words 'high misdemeanor were struck out, and the words 'other crime' inserted, in order to comprehend all proper cases; it being doubtful whether 'high misdemeanor' had not a technical meaning too limited.” 1

The article, as thus amended, was agreed to, nem. con.2 On September 12, Doctor Johnson, from the Committee on Style, reported a digest of the plan of the Constitution, in the second section of the fourth article of which there is the following clause : —

"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, and removed to the State having jurisdiction of the crime."

The only change subsequently made was in the substitution of the words "to be removed" for the phrase "and removed," in the last clause of the section.

2. Scope of Provision.

§ 521. Use of words "other crime." The intention of the framers of the Constitution in substituting the words "other crime" for "high misdemeanor," is forcibly illustrated in the correspondence of Madison. In a letter to Jefferson, of March 16, 1784,4 during the Articles of Confederation, Madison refers to a demand which had been made by the executive of South Carolina upon the executive of Virginia for the surrender of a citizen of the latter State who had violently assaulted a member of the legislature of South Carolina during the sitting of the court of general sessions. The matter was referred to Edmund Randolph, then attorney-general of Virginia, who appears to have advised against complying with the demand. Referring to the case, Madison said:

"The questions which arise upon it are; 1. Whether it be a charge of high misdemeanor without the meaning of the fourth Article of Confederation. 2. Whether, in expounding the terms 'high

1 3 Mad. Papers, 1447.

8 Id. 1558.

2 Id. 1448.

4 1 Mad. Writings, 68, 76.

misdemeanor,' the law of South Carolina, or the British law as in force in the United States before the Revolution, ought to be the standard. 3. If it be not a casus fœderis, what the law of nations exacts of Virginia? 4. If the law of nations contains no adequate provision for such occurrences, whether the intimacy of the Union among the States, the relative position of some, and the common interest of all of them in guarding against impunity for offences which can be punished only by the jurisdiction within which they are committed, do not call for some supplemental regulations on this subject? Mr. Randolph thinks Virginia not bound to surrender the fugitive until she be convinced of the facts by more substantial information, and of its amounting to a high misdemeanor, by inspection of the law of South Carolina, which, and not the British law, ought to be the criterion. His reasons are too long to be rehearsed."

In a letter of March 10, 1784, to Edmund Randolph himself, Madison, referring to the provision in the Articles of Confederation, observed, "that if the compilers of the text had severally declared their meanings, these would have been as diverse as the comments which will be made upon it;" and concluded by saying:

"Unless citizens of one State transgressing within the pale of another be given up to be punished by the latter, they cannot be punished at all; and it seems to be a common interest of the States that a few hours, or at most a few days, should not be sufficient to gain a sanctuary for the authors of numerous offences below high misdemeanors,' In a word, experience will show, if I mistake not, that the relative situation of the United States calls for a Droit Public' much more minute than that comprised in the federal articles, and which presupposes much greater mutual confidence and amity among the societies which are to obey it, than the law which has grown out of the transactions and intercourse of jealous and hostile nations."

It is somewhat of a coincidence that the first thorough discussion which we find of the provision in the Constitution is by Edmund Randolph. The governor of Pennsylvania had demanded of the governor of Virginia the surrender of certain persons charged with forcibly abducting a free negro from

Pennsylvania in order to sell him as a slave. By the laws of that State the offence was subject to fine and imprisonment at hard labor, but was not denominated a felony; by the laws of Virginia, it constituted merely a breach of the peace. The Governor of Virginia having on various grounds declined to grant a surrender, the papers in the case were sent by Governor Mifflin of Pennsylvania to President Washington, who referred them to Randolph, then Attorney-General of the United States. Randolph, on July 20, 1791, made a report, in which he held that, the other requirements of the Constitution being fulfilled, the offenders should be given up. In respect to the offence, he said:

"Why are the words or other crimes' added, if felonies alone were contemplated? In the penal code of almost every other State, the catalogue of felonies is undergoing a daily diminution.

But it

is not by the class of its punishment that the malignity of an offence is always to be determined. Crimes going deep into the public peace may bear a milder name and consequence; and yet it would be singular to afford shelter to those who were guilty of them, because they were not so called and punished.”

1

§ 522. Includes all acts made punishable by Laws of demanding State.—The scope of the meaning of the words. "other crime" was considered by the Supreme Court of the United States in the case of Kentucky v. Denison,2 in 1860. This case came up on a motion made in behalf of the State of Kentucky for a rule on the governor of Ohio to show cause why a mandamus should not be issued by the Supreme Court, commanding him to cause to be delivered up Willis Lago, a fugitive from the justice of Kentucky, who had taken refuge in Ohio. Lago was a free man of color, and was under indictment in Kentucky for enticing a female slave to leave her owner and escape. A copy of this indictment, duly authenticated under the act of Congress of 1793, was presented to the governor of Ohio by the duly authorized agent of Kentucky, and the arrest and surrender of the fugitive demanded. Governor Denison of Ohio referred the matter to the attorney1 20 Am. St. Papers (Fol. ed.), 39. 2 24 How. 66.