the enumeration of Justice Washington in Corfield v. Coryell, and that given in the opinion of the court in Paul v. Virginia and Ward v. Maryland. The opinion then continues: "These principles have not been modified by any subsequent decision of this court. The foundation upon which the above cases rest cannot, however, stand, if it be adjudged to be in the power of one State, when establishing regulations for the conduct of private business of a particular kind, to give its own citizens essential privileges connected with that business which it denies to citizens of other States. By the statute in question the British company was to be deemed and taken to be a corporation of Tennessee, with authority to carry on its business in that State. It was the right of citizens of Tennessee to deal with it, as it was their right to deal with corporations created by Tennessee. And it was equally the right of citizens of other States to deal with that corporation. The State did not assume to declare, even if it could legally have declared, that that company, being admitted to do business in Tennessee, should transact business only with citizens of Tennessee, or should not transact business with citizens of other States. No one would question the right of the individual plaintiffs in error, although not residents of Tennessee, to sell their goods to that corporation upon such terms in respect of payment as might be agreed upon, and to ship them to the corporation at its place of business in that State. But the enjoyment of these rights is materially obstructed by the statute in question; for that statute, by its necessary operation, excludes citizens of other States from transacting business with that corporation upon terms of equality with citizens of Tennessee. We hold such discrimination against citizens of other States to be repugnant to the second section of the fourth article of the Constitution of the United States, although generally speaking, the State has the power to prescribe the conditions upon which foreign corporations may enter into its territory for purposes of business. Such a power cannot be exerted with the effect of defeating or impairing rights secured to citizens of the several States by the supreme law of the land.

Indeed, all the powers possessed by a State must be exercised consistently with the privileges and immunities granted or protected by the Constitution of the United States." 17

17 Chief Justice Fuller and Justice Brewer dissented. For later decisions with reference to the conditions that the States may constitutionally impose upon foreign corporations, see Blake v. McClung, 176 U. S. 64; 20 Sup. Ct. Rep. 307; 44 L. ed. 371; Sully v. American National Bank, 178 U. S. 289; 20 Sup. Ct. Rep. 935; 44 L. ed. 1072; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; 20 Sup. Ct. Rep. 518; 44 L. ed. 657; Orient Insurance Co. v. Daggs, 172 U. S. 557; 19 Sup. Ct. Rep. 281; 43 L. ed. 552; W. U. Tel. Co. v. Kansas, 216 U. S. 1; 30 Sup. Ct. Rep. 190; Pullman Co. v. Kansas, 216 U. S. 56; 30 Sup. Ct. Rep. 232.

CHAPTER XIV.

INTERSTATE RELATIONS: EXTRADITION.

§ 104. Interstate Extradition.

The Constitution provides 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.” 1

In the case of Kentucky v. Dennison,2 decided by the Supreme Court in 1860, the respective powers and duties of the State and Federal Governments in respect to the extradition of criminals, came up for adjudication. Congress had passed a law declaring that, upon request from the State from which the fugitive has escaped, "it shall be the duty of the executive authority of the State" to cause the fugitive to be seized and delivered to the agent of the demanding State. Dennison, the governor of Ohio, refused the request of the Commonwealth of Kentucky to surrender a fugitive from her borders. Thereupon a mandamus was asked from the federal court to compel him to do so. This writ the Supreme Court in a unanimous opinion refused to issue, the argument of Taney, who prepared the opinion of the court, being as follows: The duty of providing by law the regulations necessary for carrying into effect this right to extradition manifestly belongs to Congress. "For," said Taney, "if it was left to the States, each might require different proof to authenticate the judicial proceedings upon which the demand was founded." Furthermore, Taney declared, the duty that is laid upon the governors of States by the Constitution and by the laws that Congress had passed regulating the subject is a mere ministerial duty, and, therefore, one the performance of which may ordinarily be

1 Art. IV, Sec. 2, C1. 2.

224 How. 66; 16 L. ed. 717.

compelled by the courts. Continuing he held that the clause in question by the use of the words "treason, felony or other crime," properly included every act forbidden and made punishable by a State, and did not leave to the governor of a State to which a fugitive from justice might flee, the right to refuse to surrender him upon the ground that the act in question was not one made punishable by the law of the State of which he was the chief executive. "The argument on behalf of the governor of Ohio," said Taney, "which insists upon excluding from this clause new offenses created by a statute of the State and growing out of its local institutions, and which are not admitted to be offenses in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty? Who is to mark it? The governor of the demanding State would probably draw one line, and the governor of the other State another. And if they dif fered, who is to decide between them? Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. It would have been far better to omit it altogether, and to have left it to the comity of the States, and their own sense of their respective interests, than to have inserted it as conferring a right and yet defining that right so loosely as to make it a never failing subject of dispute and ill will." Also, he de clared, it is certain that the words "it shall be the duty" when employed in the ordinary acts of legislation, imply an assertion of the right to command and coerce obedience. "But," said Taney, "looking to the subject-matter of this law, and the relations which the United States and the several States bear to each other, the court is of opinion the words 'it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this command created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of

the executive of the State; nor is there any clause or provision in the Constitution which arms the government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear that the Federal Government, under the Constitution, has no power to impose on a state officer, as such, any duty whatever, and compel him to perform it. . . . It is true that Congress may authorize a particular state officer to perform a particular duty; but if he declines to do so, it does not follow that he may be coerced or punished for his refusal."

There have since been a number of occasions in which a governor of one State has refused the extradition of a person found within its borders and who had admittedly come from the State which asked for his return. A notable instance was the refusal of the governor of Indiana to permit the extradition of exGovernor Taylor of Kentucky who was indicted in the latter State as having been a party to the murder of Governor Goebel.

§ 105. Extradition by the States of the Union to Foreign States. In 1840 the Supreme Court was called upon to pass upon the question whether it lies within the constitutional power of the individual States of the Union to surrender fugitives from justice to a foreign government.3 This point the court found it so difficult to decide that, after holding it under advisement for a long time, it divided equally and was, therefore, unable to render an opinion as the opinion of the court, though, according to its practice in such cases, it affirmed the decision of the court below. Taney in his individual opinion took the ground that the surrender of fugitives from justice is a matter that properly falls within the general field of international relations, and that the control of this field being exclusively vested in the Federal Government, the States are absolutely excluded therefrom, and, therefore, cannot, constitutionally, exercise the right of extraditing to foreign countries fugitives from them to their own territories.

3 Holmes v. Jennison, 14 Pet. 540; 10 L. ed. 579.

"The