have arisen, the judges have uniformly adhered to the established doctrines, even when executive influence has exerted itself with no small zeal to procure convictions. On one occasion only has the consideration of the question come before the Supreme Court; and we shall conclude what we have to say on this subject with a short extract from the opinion delivered upon that occasion: "To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true, that in that case the soldiers enlisted were to serve without the realm; but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied."

§ 1801. "It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war." 2

§ 1802. The other part of the clause, requiring the testimony of two witnesses to the same overt act or a confession in open court to justify a conviction, is founded upon the same reasoning.

3

1 See 4 Jefferson's Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102, 103. See Burr's Trial in 1807; 3 Wilson's Law Lect. 100 to 106.

2 Ex parte Bollman, 4 Cranch. 126. See also United States v. Burr, 4 Cranch, 469 to 508, &c.; Serg. on Const. ch. 30 (2d edit. ch. 32); People v. Lynch, 1 John. R. 553.

3 See United States v. Fries, Pamph. p. 171. [See further for a definition of treason,

A like provision exists in British jurisprudence, founded upon the same great policy of protecting men against false testimony and unguarded confessions, to their utter ruin. It has been well remarked, that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. To which it may be added, that it is easy to be forged, and the most difficult to guard against. An unprincipled demagogue or a corrupt courtier might otherwise hold the lives of the purest patriots in his hands without the means of proving the falsity of the charge, if a secret confession uncorroborated by other evidence would furnish a sufficient foundation and proof of guilt. And wisely, also, has the Constitution declined to suffer the testimony of a single witness, however high, to be sufficient to establish such a crime, which rouses against the victim at once private honor and public hostility.2 There must, as there should, be a concurrence of two witnesses to the same overt, that is, open, act of treason, who are above all reasonable exception.3

§ 1803. The subject of the power of Congress to declare the punishment of treason, and the consequent disabilities, have been already commented on in another place.1

United States v. Hoxie, 1 Paine, 265; United States v. Hanway, 2 Wallace, Jr. 139; Regina v. Frost, 9 C. & P. 129; 2 Bishop on Crim. Law, § 1032; 3 Greenl. Ev..§ 237; Boston Law Rep. 1851, p. 413. E. H. B.]

1 4 Black. Comm. 356, 357.

2 See 4 Black. Comm. 357, 358.

3 United States v. Burr, 4 Cranch, 469, 496, 503, 506, 507.

4 See ante, § 1291 to 1296. [By the act of July 17, 1862, a change was made as regards the punishment for the crime of treason subsequently committed, and it might thereafter be death or fine and imprisonment in the discretion of the court, except when it consisted in engaging in or assisting a rebellion or insurrection against the authority of the United States or the laws thereof, in which event the death penalty was not to be inflicted. See United States v. Greathouse, 2 Abb. U. S. Rep. 376.]

CHAPTER XL.

PRIVILEGES OF CITIZENS

FUGITIVES SLAVES.

§ 1804. THE fourth article of the Constitution contains several important provisions, some of which have been already considered. Among these are the faith and credit to be given to State acts, records, and judgments, and the mode of proving them, and the effect thereof; the admission of new States into the Union, and the regulation and disposal of the territory and other property of the United States.1 We shall now proceed to those which still remain for examination.

§ 1805. The first is, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." There was an article upon the same subject 2 in the confederation, which declared "that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively," &c.3 It was remarked by The Federalist that there is a strange confusion in this language. Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what is meant by superadding to "all privileges and immunities of free citizens" "all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction, however, scarcely avoidable, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled in every other State to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State. So that it was in the power of a particular State (to which every other State

1 See ante, § 1211 to 1230, § 1308 to 1315, and § 1316 to 1324.

2 See 1 Tuck. Black. Comm. App. 365.

3 Confederation, art. 4.

was bound to submit) not only to confer the rights of citizenship in other States upon any persons whom it might admit to such rights within itself, but upon any persons whom it might allow to become inhabitants within its jurisdiction. But even if an exposition could be given to the term inhabitants, which would confine the stipulated privileges to citizens alone, the difficulty would be diminished only, and not removed. The very improper power was, under the confederation, still retained in each State of naturalizing aliens in every other State.1

2

A

§ 1806. The provision in the Constitution avoids all this ambiguity. It is plain and simple in its language, and its object is not easily to be mistaken. Connected with the exclusive power of naturalization in the national government, it puts at rest many of the difficulties which affected the construction of the article of the confederation. It is obvious that if the citizens of each State were to be deemed aliens to each other, they could not take or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances.4

1 The Federalist, No. 42. See also Id. No. 80; ante, § 1098.

2 See Journal of Convention, 222, 302.

3 But see 1 Tuck. Black. Comm. App. 365.

4 Carfield v. Coryell, 4 Wash. Cir. R. 371; Serg. on Const. ch. 31, p. 384 (ch. 33, p. 393, 2d edit.); Livingston v. Van Ingen, 9 John. R. 507. [" What are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through or to reside in any other State, for the purposes of trade, agriculture, professional persuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added the elective franchise as regulated and established by the laws or constitution of the State

§ 1807. The next clause is as follows: "A person charged in any State with treason, felony, or other crime, who shall flee from in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State in every other State was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) 'the better to secure and perpetuate nutual friendship and intercourse among the people of the different States of the Union.'" Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380. The Supreme Court will not describe and define these privileges and immunities in a general classification, preferring to deal with each case as it may come up. Conner v. Elliott, 18 How. 591. Rights attached by law to contracts, by reason of the place where they are made or executed, wholly irrespective of the citizenship of the parties thereto, cannot be deemed privileges of citizens within the meaning of the Constitution. Id. The provision does not apply to corporations. Warren Manuf. Co. v. Ætna Ins. Co., 2 Paine, 501; Paul v. Virginia, 8 Wall. 180. In this last case Mr. Justice Field says: "It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property, and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Lemmon v. People, 20 N. Y. 607. Indeed, without some provision of the kind, removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with the citizens of those States, the republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.

"But the privileges and immunities secured to citizens of each State in the several States by the provision in question, are those privileges and immunities which are common to the citizens in the latter State, under their constitution and laws, by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The special privileges which they confer must, therefore, be enjoyed at home unless the assent of other States to their enjoyment therein be given."

The following cases will throw further light upon the meaning of this clause of

1 [In Kentucky v. Dennison, 24 How. 66, it was declared that the words "treason, felony, or other crime," here employed, include every offence forbidden and made punishable by the laws of the State where the offence is committed. But it was decided that if the governor of a State should refuse on proper demand to deliver up a fugitive from justice, the federal courts had no power to compel him to perform the duty.

To warrant the surrender of a person under this clause in any case, it must appear from the papers that he had committed the crime in the State from which the requisition proceeds. Ex parte Smith, 3 McLean, 121.]