(dissenting):
The provisions of section 618a of the Code of Criminal Procedure, quoted in the opinion of Mr. Justice Scott and under winch the application was made to the Special Term for a subpoena commanding one Rembrandt Peale, found within the State, hut a citizen and resident of Pennsylvania, the respondent, to leave the State and appear at Boston as' a witness in a criminal prosecution pending in the State of Massachusetts, apply not only to the citizens of this State, hut to all residents and to all persons within the State, whether citizens, residents or not.
I have grave doubt upon several grounds whether the statute is constitutional, even as applied to citizens and residents of the State, and I deem it clearly unconstitutional and void in so far as it applies to'non-residents of the State.
The attempt on the part of the State Legislature, in enacting these statutory provisions, to aid in the administration of justice in other States in particular instances, is not general, but is limited to ■ those States only bordering on our State and which have enacted similar laws. It is not entirely clear that the law of Massachusetts on this subject is sufficiently similar to our statute to give that Commonwealth the benefit of its provisions, for the statute of Massachusetts on this subject applies only to residents of that State (2 R. L. Mass. chap. 115, §§ 12, 13, p. 1576); and, moreover, it does not appear that the laws of Massachusetts give a witness, who comes into the State under such a subpoena as is authorized to be issued pursuant to the provisions of said section 618a. of the Code of Criminal Procedure, protection from the service of papers and, arrest while within that State, as is required, by said section. The order might well be sustained upon either of those grounds; but I agree with my associates that *806tile question is of sufficient public importance to require an expression of our views with respect to the constitutionality of the statute.
The Legislature, in enacting- this statute, has attempted in effect to make an unsigned treaty with certain States with respect to the surrender and delivery over of persons found within its borders who are needed as witnesses in criminal prosecutions in the other States which have enacted similar statutes for the surrender of persons found there and needed for\ like purposes in' this State. (See Holmes v. Jennison, 39 U. S. [14 Pet.] 540, 553; Ex parte Holmes, 12 Vt. 631-640.) I am inclined to the view that it violates the provisions of subdivisions 1 and 2 of section 10 of -article 1 of the Federal Constitution, which prohibit any State from entering “into any treaty, alliance or confederation,” and from entering “ into any agreement or compact with another State, or with a foreign power.,” without the consent of., the Congress. It is not claimed that the consent of Congress has' been obtained. If a State may enact such legislation with respect to a border State,, the agreement or compact may be extended to every State and Territory of the Union, and to every foreign country as well. Under it, a citizen, resident or sojourner within the State, including one passing through the State, bound perhaps on a long journey, may be summoned before a judge of a court of record and required,/ under a subpoena to be issued by the judge, to attend as a witness in another State, leaving his family and his business, for such length of time as the judge may see fit to prescribe, under pain-. of being punished here as for a contempt of court. These provisions of the Federal Constitution do not prohibit the settlement of trivial boundary disputes between the States, not involving or materially affecting their political status and duties to the government, or other agreements which do not affect the Federal government or its citizens; (Virginia v. Tennessee, 148 U. S. 503); but they do, I think, prohibit an encroachment on the authority conferred upon the Federal government to make treaties, and prohibit any .treaty, compact or agreement, express or implied, which interferes, with any privilege or immunity of a citizen of the United States, and prohibit one State from surrendering to another State or *807country any fugitive from justice, save in compliance with the extradition provisions of the Federal Constitution. It has been held that the surrender by a State of a fugitive from justice from a foreign country necessarily involves a reciprocal agree-. ment for a similar surrender under like circumstances, and is forbidden by these provisions of the Federal Constitution. (Holmes v. Jennison, 39 U. S. [14 Pet.] 540; Ex parte Holmes, 12 Vt. 631.) In People ex rel. Barlow v. Curtis (50 N. Y. 321) a statute of this State providing for the surrender of fugitives from justice from a foreign country was held unconstitutional and void for the same reason. These decisions were cited with approval in United States v. Bauscher (119 U. S. 407), wherein it was held that a State desiring as a fugitive from justice a person who is in a foreign country must apply through the State department of the United States government, whose jurisdiction was exclusive. There is no difference in the phraseology between the prohibition on the part of a State to enter into a treaty, compact or agreement with a foreign nation and with a sister State. Here, by the express terms of the statute, a reciprocal agreement on the part of the sister State, in the form of legislation, is required as a condition upon which the statute shall be operative.'
I also think that the statute violates the Fourteenth Amendment to the Federal Constitution, in that it deprives the citizen of another State and of the United States sojourning within this State of his liberty without due process of law. There has been an attempt to comply with the constitutional requirement in this regard, but there has been a compliance only in form. The hearing is only with respect to whether the person summoned is required as a witness in the sister State. He can make no defense to the application. It was a fundamental rule of international and public law, before the adoption of the Fourteenth Amendment to the Federal Constitution, that due process of law required not only ‘notice and a hearing, or an opportunity to be heard, but that the adjudication ’should be by a court of competent jurisdiction, and that the process of a court - can have no extraterritorial effect. (7 Am. & Eng. Ency. of Law [2d ed.], 36; Pennoyer v. Neff, 95 U. S. 733; La Fayette Ins. Co. v. French, 18 How. [U. S.] 404; *808McGehee Due Process of Law, 85, 87, 89, 90, 92; Sugg v. Thornton, 132 U. S. 524.) As well might the Legislature have commanded any person, on notice that his attendance in an adjoining State is required, and on payment of his traveling expenses, to leave the State and comply with the request or suffer a penalty without providing for his appearance before a judge in this State first. The mere fact that the formality of appearing before a judge is required does not materially change the situation, for it has been attempted to confer authority on a judge of this State to issue a .subpoena , against a person produced before him within this State, commanding such person to leave the State and attend as a witness before a court in a State, within the territorial limits of which neither the Legislature nor the judge, of this - State has any jurisdiction. The attempt to confer authority on the judge to punish a failure to comply with such a subpoena as for contempt of court is without authority. There can be no contempt of a court, except it be a failure to do something that the court has authority to require to be done.
Moreover, I am of opinion that the statute constitutes an infringement on the rights of a person desired as a witness, in that by being commanded to enter another State he may be there seized and held for a crime for which he could not have been extradited under the provisions of subdivision 2 of section 2 of article 4 of the Federal Constitution, and civil process may be served upon him. Even if it appeared that the State of Massachusetts had enacted a law by which the witness would be free from arrest and from service of civil process, there is no guaranty that the law would continue, and I know of no remedy by which the witness could enforce compliance therewith (Ker v. Illinois, 119 U. S. 436; Mahon v. Justice, 127 id. 700; Lascelles v. Georgia, 148 id. 537), for, as already observed, the States are forbidden to make treaties, compacts or agreements, and no court could protect rights attempted to be guaranteed under such a Statute, unless the court of the State desiring the testimony saw fit to protect the witness thereunder. The person sought as a witness, while in the exercise of his right to be and remain within this State, was secure against the service of process in á civil action in Massachusetts which *809could bind him personally or his property not brought within the jurisdiction of the court by attachment or similar process. (Pennoyer v. Neff, 95 U. S. 714.)
It is not, however, on this application essential to decide whether it is competent for the Legislature to enact such a statute with respect to Gitizens of the State, nor is it necessary to express an opinion as to whether this statute can be sustained as applicable to such citizens if it be void in its application to non-residents. The person sought as a witness is a resident of the State of Pennsylvania. It has been held in some cases that a foreign country or State may enact a law regulating the conduct of its citizens when abroad and punish them for disobedience. (Wheat. Internal Law [4th ed.], §§ 111-114; Van Voorhis v. Brintnall, 86 N. Y. 18; Thorp v. Thorp, 90 id. 602; People v. Merrill, 2 Park. Cr. Rep. 590, 599, 601; but see People v. Mosher, Id. 195); but it is quite plain, I think, that no State can exercise such jurisdiction with respect to residents of another State, and that is recog-' nized in all of the decisions which I have cited. (See, also, Pennoyer v. Neff, 95 U. S. 714, 722; Story Confl. Laws [8th ed.], 539-544.)
The Fourteenth Amendment to the Federal Constitution provides that “ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The same section declares that all persons born or naturalized in and subject to the jurisdiction of the United States are citizens thereof and of the State in which they reside. The privileges and immunities of citizens of the United States are neither clearly enumerated nor defined by the Federal Constitution, nor have the courts ventured to give a comprehensive definition thereof. (McCready v. Virginia, 94 U. S. 391.) The policy of the Federal courts appears to be to refrain from attempting a definition of such privileges and immunities, the same as they refrain from giving a comprehensive definition of due process of law, and to pass upon the facts of each case as the questions are presented for decision. (McCready v. Virginia, supra; Orient Ins. Co. v. Daggs, 172 U. S. 557.) The Federal courts have, however, in discussing what are embraced within the privileges and immuni*810ties of citizens of the United States, stated that those privileges and immunities embrace, among other things, the right of engaging in interstate business, of going from one State to another and there engaging in business, of stopping in any State for business or for pleasure; of taking up a residence therein and of becoming a citizen thereof, and of passing through any State' without stopping. (Ward v. Maryland, 79 U. S. [12 Wall.] 418, 430; Corfield v. Coryell, 4 Wash. C. C. 380; Crandall v. State of Nevada, 6 Wall. 35; Slaughter House Cases, 83 U. S. [16 Wall.] 36, 79; Brannon Fourteenth Amendment, 66.) In the Slaughter House Cases it was stated by the court that section 2 of the 4th article of the'Federal Constitution, which provides that “ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” was intended to preserve the rights declared in article 4 of the Articles of Confederation, wherein it was declared that every free citizen of any State shall be entitled to all.the privileges and immunities of free citizens in the several States, “and the people of each State shall have free ingress and regress to and from any other State and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively.” These rights are, of course, subject to the police power • of the State, with respect to regulations for inspection and exclusion in the interests of the public health, morals and welfare, which, however, must not encroach on the authority of Congress, by treaty and otherwise, to regulate immigration and international and interstate commerce. (Brannon Fourteenth Amendment, 176; City of New York v. Miln, 36 U. S. [11 Pet.] 102; Passenger Cases, 48 id. [7 How.] 283; Henderson v. Mayor of New York, 92 id. 259.) The police power of the State has no bearing • on the question under consideration, for no charge is made against Peale personally. The right of the State to summon before its courts, in the administration of the public justice of the State, persons found Within the State, whether citizens, residents or non-residents, is quite clear, as is also the right; in the interest of comity between States and nations, to provide for the taking of testimony within the State for use without the State, and *811these rights are exercised by all sovereign States and countries. The right, however, attempted to be conferred by this statute is quite different. It is to compel one to leave the State, whom the State could not prevent from entering, and then to punish him for his failure to do something beyond the jurisdiction of the State and of the judge whom it is attempted to authorize to inflict the punishment. The statute is in conflict, I think, with the right óf a non-resident to enter and remain within the borders of the State. While within the State, he is subject, of course, as are the citizens and residents of the State, to the laws of the State regulating his conduct; but even though the State may compel its own citizens to leave the State temporarily, and punish them for their failure to testify in another State, it does not follow that it may likewise compel a non-resident to depart from the State and punish him for doing or omitting to do something beyond the borders of the State. If this be competent legislation as against a non-resident then the Legislature could also enact a law requiring citizens, residents and non-residents to cross the border to enable a sister State or foreign country to obtain'jurisdiction over them for any purpose. The authority of a court of equity in the administration of justice between parties over whom it has jurisdiction to punish as for a contempt the refusal or failure on the part of one party to execute within the State a transfer or conveyance of property without the State (Watkins v. Holman, 41 U. S. [16 Pet.] 25; Cole v. Cunningham, 133 id. 107, 116; Massie v. Watts, 6 branch, 148; Pennoyer v. Neff, supra) is clearly not analogous to the authority here attempted to be conferred. I am, therefore, of opinion that the statute violates the provision of the Federal Constitution prohibiting the States from enacting any law abridging the privileges and immunities of citizens of the United States.
The statute cannot be sustained upon the ground that it is necessary to the administration of justice and that, therefore, the Legislature must be deemed authorized to enact it. There is no necessity for such a law with respect to either civil or criminal cases, for unless a State sees fit to limit itself by its Constitution or its laws, there is no guaranty in the Federal Constitution that a person charged with crime must be con*812fronted with the witnesses (People v. Fish, 125 N. Y. 136; People v. Bromwich, 135 App. Div. 67; affd., 200 N. Y. 385); hut of course with the necessity for the enactment of the law we are not concerned.
I, therefore, dissent from the reversal of the order.
Order reversed and application remitted to Special Terra. Order to he settled on notice.