concurring:
While I concur with the result reached in this case, I am not totally in accord with the reasoning advanced by the majority.
Traditionally, in this country, the banishment question arises when a court seeks to impose a sentence on a defendant that requires him to leave the jurisdiction for a *5stated period. See People v. Lopez, 81 Cal.App. 199, 253 P. 169 (1927); People v. Baum, 251 Mich. 187, 231 N.W. 95 (1930); Hoggett v. State, 101 Miss. 269, 57 So. 811 (1912); State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922 (1953); State v. Baker, 58 S.C. Ill, 36 S.E. 501 (1900); Annot., 70 A.L.R. 98 (1931). Because the underlying criminal sentences of both petitioners carried no banishment provision, the State argues that our banishment clause, Section 5, Article III of the West Virginia Constitution, is not violated.
However, our constitutional provision is quite broad: “No person shall be transported out of, or forced to leave the State for any offence committed within the same.” To my mind, there can be no doubt that petitioners were transported out of this State because of an offense that occurred within this State, i.e., the breach of prison rules at the Alderson Prison. Certainly, the term “offence,” which has been defined to include any lawful act pursued by the public authorities and which gives rise to a penalty or forfeiture, is broad enough to embrace prison infractions which result in disciplinary penalties. E.g., McMahan v. State, 354 P.2d 476, 483 (Okla.Crim.1960); Commonwealth v. Brown, 264 Pa. 85, 90, 107 A. 676, 679 (1919); Jernigan v. Commonwealth, 104 Va. 850, 852, 52 S.E. 361, 362 (1905); State v. Slowe, 230 Wis. 406, 410, 284 N.W. 4, 6 (1939); see also Black’s Law Dictionary 1282 (3d ed. 1933). In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the United States Supreme Court recognized that such infractions involve a sufficient liberty interest to warrant due process protection. We have adopted the same position in Tasker v. Griffith, 160 W.Va. 739, 238 S.E.2d 229 (1977). See also Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980); Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978).
Furthermore, the fact that the transportation or banishment edict emanated from a prison administration is not important as the act of banishment had it origins, not in the courts, but with the king. Craies, The Compulsion of Subjects to Leave the Realm, 6 (No. XXIV) Law Q.Rev. 388 (1890). It was to prohibit this practice that the twelfth section of the English Habeas Corpus Act, 31 Car. II (1679), was passed.1
Admittedly, there is a paucity of cases involving a factual situation analogous to the present case. The Illinois Supreme Court in Sayles v. Thompson, 99 Ill. 2d 122, 75 Ill.Dec. 446, 457 N.E.2d 440 (1983), did consider the question with regard to state prisoners who were subject to transfer under the Interstate Corrections Compact.2 A divided court concluded that such trans*6fers were not precluded by virtue of Illinois constitutional provisions against transportation out of the state. This result was reached as a result of the court’s review of the record of the state’s 1970 constitutional convention in which the transportation clause was stated to be “actually tantamount to a prohibition against cruel and unusual punishment.” 99 Ill.2d at 128, 75 Ill.Dec. at 449, 457 N.E.2d at 443.
From this constitutional convention commentary, the court concluded “that the transportation clause is violated only if and when the transportation of prisoners constitutes cruel and unusual punishment.” 99 Ill.2d at 128, 75 Ill.Dec. at 449, 457 N.E.2d at 443.
It is not possible to reach such a result under our Constitution since Section 5 of Article III of our Constitution contains both a proscription against cruel and unusual punishment and transportation out of the State for an offense committed within the State.3 From a historical perspective, the two constitutional clauses are independent. Banishment at common law was not considered cruel and unusual punishment.4 See People v. Baum, 251 Mich. 187, 231 N.W. 95 (1930); People v. Green, 114 Misc.2d 339, 451 N.Y.S.2d 970 (1982).
The other state case, Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977), dealt with an interstate transfer of a Vermont prisoner to a federal out-of-state prison. The Supreme Court of Vermont treated the issue in a rather cursory fashion perhaps because Vermont has no banishment provision in its constitution.5
Although the respondents cite Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), it is not on point since it involved only a claim that an interstate transfer required some procedural due process protection. There is no banishment prohibition in the United States Constitution.
Finally, I would observe that nothing in the majority opinion or in West Virginia’s Constitution would foreclose the State from temporarily transporting a prisoner in this State to a prison out of state in response to a request under our Agreement on Detainers Act, W.Va.Code, 62-14-1, et seq., or other laws designed to enable a demanding state to bring a prisoner incarcerated in this State to trial. Similarly, the State would not be foreclosed from temporarily removing a prisoner in this State for out-of-state treatment. Such procedures have nothing to do with a banishment-type sentence, which involves a determinate or indeterminate removal imposed for the commission of an offense within this State.6
. Justice Marshall in note 1 of his dissent in Olim v. Wakinekona, 461 U.S. 238, 252, 103 S.Ct. 1741, 1749, 75 L.Ed.2d 813, 825 (1983), states:
“J. Madison, 4 Elliott’s Debates, 455. Whether it is called banishment, exile, deportation, relegation or transportation, compelling a person ‘to quit a city, place, or country, for a specified period of time, or for life,’ has long been considered a unique and severe deprivation, and was specifically outlawed by ‘[t]he twelfth section of the English Habeas Corpus Act, 31 Car. II, one of the three great muniments of English liberty.’ United States v. Ju Toy, 198 U.S. 253, 270, 25 S.Ct. 644, 649, 49 L.Ed. 1040 (1905) (Brewer, J., dissenting)."
This may not be historically accurate as it appears that the English Habeas Corpus Act, 31 Car. II (1679), was directed only against the king. Under English statutes, banishment could be imposed as part of a criminal sentence. E.g., Rex v. Lewis, 1 Moody 372, 168 Eng.Rep. 1308 (1832); Rex v. Pearce, 1 Russ. & Ry. 174, 168 Eng.Rep. 745 (1810); Rex v. Wilson, 1 Russ. & Ry. 115, 168 Eng.Rep. 712 (1806). W.F. Craies in his article, The Compulsion of Subjects to Leave the Realm, 6 (No. XXIV) Law Q.Rev. 388, 401 (1890), states:
“The Habeas Corpus Act, while merely reinforcing the provisions of the [Magna Charta], and imposing heavy penalties on illegal deportation, was not directed against exile by conditional pardon, which indeed it may be said to have legalised, but only at abduction and transportation without trial or before conviction. The real effect of s.s. 11, 12 and 13 is much less than is usually supposed. It merely prevented transportation for misdemeanours, and the practice of spiriting which was then common (see Designy's case (1682); Raymond 474) and all private arrangements as to transporting felons, and petitions from prison to the king such as have been already referred to.”
. 18 U.S.C. § 5003(a) authorizes the Attorney General to contract with a state for the transfer of a state prisoner to a federal prison. It is not argued by respondent that such a compact exists with our State.
. Section 5 of Article III of the West Virginia Constitution provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character and degree of the offence. No person shall be transported out of, or forced to leave the State for any offence committed within the same; nor shall any person, in any criminal case, be compelled to be a witness against himself, or be twice put in jeopardy of life or liberty for the same offence."
. As indicated in note 1, many English criminal statutes did contain banishment provisions, and the courts enforced them without any suggestion that the punishment was cruel or unusual.
. Chapter I of Article 21 of the Vermont Constitution only provides: “That no person shall be liable to be transported out of this state for trial for any offence committed within the same."
. The respondents do not argue in this case that the action taken against the petitioners was temporary and unrelated to the offenses that were committed at Alderson. Furthermore, it appears that the officials at Alderson were willing prior to the transportation to transfer the petitioners to the custody of the West Virginia Department of Corrections, which retained primary legal jurisdiction over the petitioners. However, in both instances, the Department of Corrections, in effect, sanctioned the transportation by refusing to accept actual custody of the petitioners.