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States in Holmes v. Jennison,28 in 1840. George Holmes, a naturalized citizen of the United States, who was charged with having committed murder in Lower Canada, was confined in Vermont under a warrant of arrest issued by the governor of that state, directing the sheriff of one of the counties to convey and deliver him to the agent of Canada, "or to such person or persons as by the laws of said province may be authorized to receive the same, at some convenient place on the confines of this state and the said Province of Lower Canada, to the end that he, the said George Holmes, may be thence conveyed to the said District of Quebec, and be there dealt with as to law and justice appertains." At that time no extradition treaty existed between the United States and Canada, and hence the President declined to act, alleging a want of power. Holmes secured a writ of habeas corpus from the supreme court of Vermont, and in his return to the writ the sheriff stated that he detained him under an order from the governor, commanding him, the sheriff, to deliver the prisoner up to the authorities of Lower Canada. The supreme court of that state held the return to be sufficient. Holmes then prosecuted a writ of error to the supreme court of the United States. In this proceeding two questions were presented to the court: First, whether a writ of error would lie from the supreme court of the United States to the supreme court of the state; and second, whether the judgment of the state court was right. The case was heard before eight judges of the federal supreme court, who, on the first of these questions, equally divided, thus preventing an authoritative decision upon the principal question. Chief Justice Taney, in his opinion, upheld the appellate jurisdiction of the supreme court of the United States, and declared against the right attempted to be exercised by the governor of Vermont, and his opinion was concurred in by Justices Story, McLean and Wayne. Separate opinions, in which Justice Baldwin joined, were delivered by Justices Thompson, Barbour and Catron, in which the power of the supreme court of the United States to revise the judgment of the supreme court of Vermont was denied, but in which any clear opinion upon the power of the authorities of the state of Vermont, executive or judicial, to deliver Holmes to the government of Canada was

28 14 Pet. 540, 10 L. ed. 579.

not expressed. Upon the return of the case to the supreme court of Vermont, Holmes was discharged, the chief justice of that court saying: "I am authorized by my brethren, to say that on an examination of this case, as decided by the Supreme Court of the United States, they think, if the return had been as it now is, a majority of that court would have decided that Holmes was entitled to his discharge, and that the opinion of a majority of the Supreme Court of the United States was also adverse to the exercise of the power in question by any of the separate states of the Union.” 29

§ 38. Treaties now govern.—The supreme court of the United States sustained, later, the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont was a part of the foreign intercourse of this country conferred upon the federal government, but said: "Fortunately, this question, with others, which might arise in the absence of treaties or Acts of Congress, on the subject, is now of very little importance, since, with nearly all the nations of the world with whom our relations are such that fugitives from justice may be found within their dominions or within ours, we have treaties which govern the rights and conduct of the parties in such cases. These treaties are also supplemented by Acts of Congress, and both are in their nature exclusive.” 30

* Ex parte Holmes, 12 Vt. 631.
*United States v. Rauscher, 119

U. S. 407, 7 Sup. Ct. Rep. 234, 30
L. ed. 425.

§ 40.

§ 41.

§ 42.

§ 43.

CHAPTER III.

COMPACTS BETWEEN STATES.

§ 39. Clause as to compact with other states.

Nature of compacts that may be made by states.
Extent and meaning of clause.

To what compacts does the Constitution apply.
Boundaries between two states.

§ 44.

§ 45.

§ 46.

Controversies at time of adoption of Constitution.
Boundary between South Dakota and Nebraska.
Construing compacts between two states.

§ 47.

§ 48.

Disputed boundary between United States and state.
Suits by state to recover penalties.

§ 49.

§ 50.

Approval of Congress implied from subsequent legislation.
Creation of mutual estoppel.

§ 51.

Contract of state to exempt property from taxation. § 52. Subsequent statutes directing taxation of such property. § 53. Compacts relating to property.

§ 39. Clause as to compacts with other states. Another clause of the Constitution prohibiting a state from making a compact or agreement with another state or with a foreign power is the following: "No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will admit of no delay."1 This clause, as originally reported by the Committee on Detail, was numbered Article XIII, and read: "No state, without the consent of the legislature of the United States, shall emit bills of credit, nor make anything but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another state, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent as not to admit of a delay until the legislature of the United States can be consulted."

1 Const., art. I, sec. 10, cl. 3.

The provisions as to bills of credit and tender were transferred to the first clause of the section, and finally, after the Committee on Style had reported, the convention remodeled the clause and adopted it in its present form.

§ 40. Nature of compacts that may be made by states. While it may be impossible to state with absolute accuracy what compacts or agreements may be made by the states individually, yet it is clear that the inhibition upon the power of the states is aimed at the formation of any combination having a tendency to augment the political power in the states which may diminish or interfere with the supremacy of the general government. Judge Story, in commenting upon this clause of the Constitution, after referring to the prohibition against a state entering into treaties, alliances, or confederations, and its power, with the consent of Congress, to enter into an agreement or compact with another state or with a foreign power, observes: "What precise distinction is here intended to be taken between treaties, agreements and compacts, is nowhere explained, and has never as yet been subjected to any exact judicial, or other examination. A learned commentator, however, supposes that the former ordinarily relate to subjects of great national magnitude and importance, and are often perpetual, or for a great length of time; but that the latter relate to transitory or local concerns, or such as cannot possibly affect any other interests but those of the parties. But this is at best a very loose and unsatisfactory exposition, leaving the whole matter open to the most latitudinarian construction. What are subjects of great national magnitude and importance? Why may not a compact or agreement between states be perpetual? If it may not, what shall be its duration? Are not treaties often made for short periods, and upon questions of local interest, and for temporary objects?"2 He then remarks that the language of the clause, preventing treaties, alliances or confederations, may plausibly be interpreted from the terms used; and "upon the ground that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character; such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are

2 Story on Constitution, sec. 1402, citing 1 Tucker's Blackstone's Commentaries, App. 310.

leagued for mutual government, political co-operation, and the exercise of political sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges. The latter clause, 'compacts and agreements,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary; interests in land situated in the territory of each other; and other internal regulations for the mutual comfort and convenience of states, bordering on each other." 3

§ 41. Extent and meaning of clause.-In an original suit in the supreme court of the United States to establish by judicial decree the true boundary line between the states of Virginia and Tennessee, and in which the boundary line as established by the compact of 1803 was determined to be the true boundary line, Mr. Justice Field had occasion to consider the extent and meaning of the clause that no state shall, without the consent of Congress, among other things, "enter into any agreement or compact with another state or with a foreign power." He put the proposition in the form of a question, "Is the agreement made without the consent of Congress between Virginia and Tennessee, to appoint commissioners to run and mark the boundary line between them, within the prohibition of the clause?" and then proceeded:

"The terms 'agreement' or 'compact' taken by themselves are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

"There are many matters upon which different states may agree that can in no respect concern the United States. If, for instance, Virginia should come into possession and ownership of a small parcel of land in New York which the latter state might desire to acquire as a site for a public building, it would hardly 32 Story on Constitution, sec. 1403.

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