Lapas attēli
PDF
ePub

the agent, with authority to dispose of it, carried with it the presumption that he was authorized to dispose of it upon any terms not unusual, that the notice in the agreement limiting his authority did not not do so, inasmuch as the agreement was on its face not complete, but contained blanks that might be filled out with such a contract as the woman understood she had made, and that, as making the paper conclusive evidence of the contract would sanction the perpetration of fraud upon the woman, parol evidence was admissible to show the true circumstances, and a judgment against the company was affirmed. The Supreme Court of Minnesota in Domestic Sewing Machine Co. v. Anderson, 15 Alb. L. J. 64, disposes of a similar case by holding that the contract of sale being perfected before the lease, as it is called, is executed, the latter instrument is invalid for want of consideration.

In Stone v. C. N. W. R. R. Co., decided by the Supreme Court of Iowa at the October (1877) Term, plaintiff purchased of defendant, at Clinton, a ticket to Sioux City, a station on another railroad. The ticket contained two coupons, one for use on defendant's railroad, and the other for use on the other

one.

Plaintiff entered one of defendant's trains, and presented his ticket to the conductor, who punched it to indicate that it had been used, and gave plaintiff a conductor's check. Before plaintiff reached the point where he was to leave defendant's road, he left the train, and afterward took another train from the same place to continue his journey. He presented the conductor's check and punched ticket to the conductor on the second train, who refused to receive them for fare, and ejected plaintiff at a station where the train stopped. Plaintiff then purchased a ticket at that station, and entered the same train, but the conductor refused to permit him to ride unless he paid his fare from the place where he had originally entered the train to the station where he had purchased his ticket, and again ejected him. The court held that the conductor was justified in ejecting plaintiff from the train in the first instance, and was also justified in refusing to let him ride on the train after he had procured a ticket at the station where he was put off. The first proposition is supported by many authorities, being in accordance with the rule that when a passenger who has purchased a ticket has elected the train upon which he is to proceed to his destination, he cannot leave that train after it has commenced its journey, and enter a subsequent one without again paying fare. Hamilton v. N. Y. C. R. R. Co., 51 N. Y. 100; McClure v. P. W. and B. R. R. Co., 34 Md. 532; 6 Am. Rep. 345; Dietrich v. Penn. R. R. Co., 71 Penn. St. 432; 10 Am. Rep. 711; Cheney v. B. & M. R. R. Co., 11 Metc. 131. The latter propo- | sition does not seem to be as well sustained. The case of O'Brien v. B. & W. R. R. Co., 15 Gray, 20,

which is cited in support of it, holds that when a conductor has ejected a person from a train for a refusal to pay fare, he is not bound to let him ride if he again enters the train and offers to pay fare. The court there say: "After being rightfully expelled from the train, he could not again enter the same cars and require the defendant to perform the contract he had broken." But in the principal case, by the sale of the second ticket, defendant made a new contract with plaintiff to carry him on any train that plaintiff should elect. The court say that he was entitled to ride on any other train than the one he had been ejected from. We cannot see any good reason for excepting that one, if the defendant, when selling plaintiff the ticket, did not do so.

In the case of Pettis v. Johnson, recently decided by the Supreme Court of Indiana, it is held that a municipal corporation has no power to authorize the owner of a lot to erect a stairway extending into a public street or alley, that such a structure when extending into the street is a purpresture, and is per se a nuisance, and that, therefore, a person cannot gain by prescription the right to continue it. That any encroachment upon the public highway is a nuisance, and abatable as such, is sustained by numerous cases. It is not enough that the public have sufficient space left for the necessary uses of the highway. They are entitled to the entire space set apart for that purpose. In Regina v. Un. King. Tel. Co., 31 L. J. 167, where telegraph posts on the outer edge of a highway were held nuisances, the court say: "It is enough that the posts stand in the way of those who may choose to go there." See, also, King v. Wright, 3 B. & Ad 681, where it is said: "I am strongly of opinion when I see a space of fifty or sixty feet, through which a road passes between inclosures set out under act of Parliament, that unless the contrary be shown, the public are entitled to the whole of that space, although from motives of economy, perhaps, the whole of it has not been kept in repair." Also, Rex v. Lord Grosvenor, 2 Starkw. 511; Queen v. Betts, 16 Q. B. 1022, where it is held that "any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass." Chamberlain v. Enfield, 43 N. H. 356; People v. Cunningham, 1 Den. 542; Davis v. Mayor, etc., 14 N. Y. 524; Rex v. Jones, 3 Campb. 230; Dickey v. Maine Tel. Co., 46 Me. 483; Wright v. Saunders, 65 Barb. 214; Commonwealth v. King, 13 Metc. 115. The rule that there can be no prescription for a public nuisance is well established. Mills v. Hall, 9 Wend. 315; Rhodes v. Whitehead, 27 Tex. 304; Regina v. Brewster, 8 Up. Can. (C. B.) 208; Taylor v. People, 6 Park. Cr. 363; Commonwealth v. Upton, 6 Gray, 475. See, further, Wood on Nuisances, 744.

IN

INTERNATIONAL EXTRADITION.

BY SAMUEL T. SPEAR, D. D.

N 1864 the Captain-General of Cuba, through the Spanish minister at Washington, requested Secretary Seward to order the delivery of one Arguelles, a Spaniard, who had been governor of a district in Cuba, and, in the request, was charged with a gross violation of the laws of Spain in respect to the slave trade, and, as alleged, had fled to New York with a large sum of money obtained as the fruit of his crime. Secretary Seward, under the sanction of the President, ordered the arrest and delivery, as an

act of executive power, without any treaty with Spain providing for it, and without any law of the United States giving the authority. Arguelles was arrested and so summarily taken out of the country that there was no opportunity to interpose any judicial process for his relief.

The Senate of the United States requested the President to inform the Senate whether such a

delivery had been made, and, if so, under what authority of law or treaty it was done. The President, in his reply, transmitted a report from Secretary Seward, in which the latter said:

"There being no treaty between the United States and Spain, nor any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered, the extradition in the case referred to in the resolution of the Senate is understood by this department to have been made in virtue of the law of nations and the Constitution of the United States. Although there is a conflict of authorities concerning the expediency of exercising comity toward a foreign government by surrendering at its request one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender, unless it is acknowledged by treaty, or by statute-law, yet a nation is never bound to furnish asylum to dangerous criminals who are offenders against the human race; and it is believed that, if in any case the comity could with propriety be practiced, the one which is understood to have cailed forth the resolution furnished a just occasion for its exercise." McPherson's History of the Rebellion, p. 355.

Whether this procedure is to be justified depends upon the question whether it rested on any legal authority. There being no such authority, either by treaty or by any law of Congress, reference was made to "the law of nations and the Constitution of the United States," as the basis of the proced

[blocks in formation]

may have been the guilt of Arguelles, the act sinks to the level of official kidnapping.

Mr. Wheaton, in his Elements of International Law (Lawrence's edition, 1863), p. 232, mentions Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Schmelzing and Kent, as holding "that, according to the law and usage of nations, every sovereign State is obliged to refuse an asylum to individuals accused of crimes affecting the general peace and security of society, and whose extradition is demanded by the government of that country within whose jurisdiction the crime has been committed." He also names Puffendorf, Voet, Martens,

Kluber, Leyser, Kluit, Saalfield, Schmaltz, Mittermeyer and Heffter as maintaining that "the extradition of fugitives from justice is a matter of imperfect obligation only, and, though it may be habitually practiced by certain States as the result of mutual comity and convenience, requires to be confirmed and regulated by special compact, in order to give it the force of an international law." It is, perhaps, sufficient to say in regard to these authorities, all of whom are foreigners with the exception of Kent, that their conflict of opinion shows that the principle of extradition, viewed irrespectively of treaty stipulations, has never been so established in the practice of European nations as to entitle it to be regarded as an international law. These nations in modern times dispose of the question by treaties; and this shows that, whatever may have been their earlier practice, they do not now recognize any obligation to surrender fugitive criminals to one another, except as the same is provided for in this way. We, hence, conclude, without going into a lengthy discussion of this point, that there is not now in Europe, if there ever were, any international law of extradition beyond that which treaties create and prescribe. If there were, it would not be operative in and binding upon the United States, except as the Government thereof may have seen fit to adopt it.

As a matter of fact, it is not and never has been the practice of the United States Government either to demand or surrender fugitive criminals, except where the right has been secured and the obligation imposed by treaty. The general usage of the country gives no support to the theory of extradition on the ground of either comity or international law. It rather contradicts and excludes such a theory.

In 1873 the Belgian Minister requested the United States to deliver up Carl Vogt, in the absence of any treaty of extradition with Belgium. To this request Mr. Bancroft Davis, the then Acting Secretary of State, replied as follows: "The authority of the Executive to abridge personal liberty within the jurisdiction of the United States, and to surrender a fugitive from justice, in order that he may be taken from their jurisdiction, is derived from the

statutes of Congress, which confer that power only in cases where the United States are bound by treaty to surrender such fugitives, and have a reciprocal right to claim similar surrender from another power. I am, therefore, constrained to decline to comply with your request for the surrender of Carl Vogt." Foreign Relations of the United States, 1873, Vol. I, p. 81.

The extradition provision in the treaty of 1794 with Great Britain was limited to the period of twelve years; and hence, after 1806, it ceased to be operative, and no similar stipulation was entered into until the ratification of the Ashburton treaty of 1842. An application was, however, made in 1840 to the President, requesting the delivery of George Holmes, a naturalized citizen of the United States, charged with having committed murder in Lower | Canada. The President declined to comply with the request, assigning as the reason that, in the absence of a treaty, he had no power to order the delivery. Holmes being then in Vermont, an application was made to the governor of that State, who issued his warrant of arrest; and Holmes, being in the custody of the sheriff, applied to the Supreme Court of Vermont for a writ of habeas corpus, to test the legality of his imprisonment. The court granted the writ, and, after hearing the case, held that he was lawfully restrained of his liberty. A writ of error was then taken to the Supreme Court of the United States; and, the court being equally divided on the question of jurisdiction over the case, the writ was dismissed. Four of the judges expressed the opinion that "the power to surrender fugitives who, having committed offenses in a foreign country, have fled to this for shelter, belongs, under the Constitution of the United States, exclusively to the Federal Government, and that the authority exercised in this instance by the governor of Vermont is repugnant to the Constitution of the United States." This led the Supreme Court of Vermont to review its decision, and discharge Holmes on habeas corpus. Holmes v. Jennison, 14 Pet. 540, and Ex parte Holmes, 12 Vt. 631. A similar opinion, in The People ex rel. Francis C. Barlow v. Curtis, 50 N. Y. 321, was expressed by the Court of Appeals of New York.

In 1793 Mr. Genet, the Minister of the French Republic, made a request for the delivery of several persons who were citizens of France, to which Mr. Jefferson, in his letter of September 12, 1793, thus replied: "The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender, coming within their pale, is received by them as an innocent man, and they have authorized no one to seize or deliver him. The evil of protecting malefactors of every dye is sensibly felt here, as in other countries; but, until a reformation of the criminal codes of most nations, to deliver fugitives from them would be to become their accomplices. The former is viewed, therefore

[ocr errors]

as the lesser evil. When the consular convention with France was under consideration, this subject was attended to; but we would agree to go no further than is done in the ninth article of that instrument, where we agree mutually to deliver up captains, marines, sailors, and all other persons being part of the crew of the vessels, etc. Unless, therefore, the persons before named be a part of the crew of some French vessel, no power in this country is authorized to deliver them up; but, on the contrary, they are under the protection of the laws." American State Papers, vol. 1, p. 175.

In 1791 Governor Pinckney, of South Carolina, requested President Washington to demand of the Governor of Florida the surrender of certain persons who, having committed offenses in South Carolina, had taken refuge in Florida. The question was referred to Mr. Jefferson, who was then Secretary of State; and in his letter to the President, of November 7th, 1791, he said: “England has no convention with any nation for the surrender of fugitives from justice, and their laws have given no power to the executive to surrender fugitives of any description. They are, accordingly, constantly refused, and hence England has been the asylum of the Paolis, the La Mottes, the Calonnis, in short, of the most atrocious offenders as well as of the most innocent victims who have been able to get there. The laws of the United States, like those of England, receive every fugitive, and no authority has been given to our executives to deliver them up. If, then, the United States could not deliver up to General Quesnada fugitives from the laws of his country, we cannot claim as a right the delivery of fugitives from us. And it is worthy of consideration whether the demand proposed to be made in Governor Pinckney's letter, should it be complied with by the other party, might not commit us disagreeably, and perhaps dishonorably." Clarke on Extradition, sec. ed., p. 34.

A still earlier case, occurring in 1784, before the adoption of the Constitution, was that of Chevalier de Longchamps, who was indicted in Philadelphia for "threatening bodily harm to M. Marbois, the Consul-General of France in the United States, and Secretary to the French Legation, and also for an assault upon him." Having appeared in the uniform of a French officer and called himself such, the Minister of France demanded that he should be delivered up that he might be sent to France for trial and punishment. The court before which the indictment was brought, being informed of this demand, had two questions to decide. One was whether the prisoner could be lawfully delivered up, which was answered in the negative. The other was whether, if he could not be delivered up, he could be imprisoned until the King of France should declare the reparation satisfactory; and this also was answered in the negative. Being convicted on both

counts of the indictment, he was punished by fine and imprisonment under American laws but not surrendered to the French government. Respublica v. Longchamps, 1 Dall. 120.

These cases show that the international surrender of fugitive criminals, except as provided for by treaty, has no basis and no sanction in the usage of the United States. The usage, so far as there is any, is to the contrary effect.

Congress, in 1848, passed its first law on this subject, which, being supplemented by the acts of June 22nd, 1860, of March 3rd, 1869, and of June 19th, 1876, constitutes the law of the United States in respect to international extradition. The only cases to which this law, by its express terms, is applicable, are those arising under treaties. The obvious implication is that there are no other cases of such extradition. The power to pass such a law rests upon that provision of the Constitution which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" all powers vested in the Government of the United States, or in any department or officer thereof." The treaty power given to the President, subject in its exercise to the advice and consent of the Senate, is one of these powers; and there can be no doubt that it extends to treaties of extradition with foreign nations. This, as Attorney-General Cushing declared in the case of a deserter from the Danish ship Sago, 6 Op. Att.-Gen., 155, is the source from which Congress derives its authority to enact a law for the delivery of criminal fugitives from other countries. The framers of the Constitution seem to have regarded the whole question as being covered by the treaty power, and hence made no other provision in regard to it. And if Congress be thus limited in its power, what reasonable pretense can there be for the theory that the President, with no treaty and no law giving him the authority, has the power to order the arrest and delivery of a fugitive criminal from another country?

The Attorney-Generals of the United States have been frequently called upon to express their official opinions on various points connected with international extradition. One of the earliest of these opinions was given by Attorney-General Lee in 1797, in the case of William Jones, 1 Op. Att.-Gen., 68, in which he said: "If a demand were formally made that William Jones, a subject and fugitive from justice, or any of our own citizens, heinous offenders within the dominion of Spain, should be delivered to their government for trial and punishment, the United States are in duty bound to comply; yet, having omitted to make a law directing the mode of proceeding, I know not how, according to the present system, a delivery of such offender could be effected. To refuse or neglect to comply with such a demand may, under certain cir

cumstances, afford to the foreign nation just cause for war." The United States at the time had no extradition treaty with Spain, and hence the whole question was simply one of comity, which AttorneyGeneral Lee regarded as equivalent to an international obligation. He saw no way of discharging the duty in the then existing state of the law, and hence suggested the expediency of enacting a law to remedy the difficulty.

Attorney-General Wirt, in Sullivan's Case, 1 Op. Att.-Gen., 509, in 1821 went into a thorough examination of the question; and the result to which he came was stated as follows: "The truth seems to be that this duty of delivering up criminals is so vague, is of so imperfect a nature as an obligation, is so inconveniently incumbered in practice by the requisition that the party demanded shall have been convicted on full and judicial proof, or such proof as may be called for by the nation on whom the demand is made, and the usage to deliver or refuse, being perfectly at the option of each nation, has been so various, and consequently so uncertain in its action, that these causes combined have led to the practice of providing by treaty for all cases in which a nation wishes to give herself a right to call for fugitives from her justice." The demand in this case was made by Great Britain without any extradition treaty, and the Attorney-General held that there was no obligation to comply with it. He added the expression of an opinion that, even if there were such an obligation under the law of nations, "still the President has no power to make the delivery," since he can derive this power only from treaties or from acts of Congress, neither of which then contained any provision giving him such authority.

In the Case of two Portuguese Seamen, 2 Op. Att.Gen., 559, whose delivery was requested by the King of Portugal, Attorney-General Taney said: "There is no law of Congress which authorizes the President to deliver up any one found in the United States, who is charged with having committed a crime against a foreign nation; and we have no treaty stipulations with Portugal for the delivery of offenders. In such a state of things it has always been held that the President possesses no authority to deliver up the offender." So, also, in reference to the Application of Chevalier Huygens, 2 Opp. Att.Gen., 452, he said: "As there is no stipulation by treaty between the two governments for the mutual surrender of fugitives from justice, I think the President would not be justified in directing the surrender of the person on whom a part of the stolen articles may have been found, in order that he may be brought to trial in the country where he is supposed to have committed the robbery."

In De Witt's Case, 3 Op. Att.-Gen., 661, AttorneyGeneral Legaré said: "The President is not con

sidered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice."

In Wing's Case, 6 Op. Att.-Gen., 85, AttorneyGeneral Cushing, after referring to the cases for extradition specified in the treaty of 1842 with Great Britain, and remarking, that larceny, the offense charged against Wing, was not embraced in the list, proceeded to say: "It is, therefore, in these cases only that, by treaty, either government can claim the extradition of fugitives taking refuge in the dominions of the other. It is the settled politic doctrine of the United States that, independently of special compact, no State is bound to deliver up fugitives from the justice of another State. I am, therefore, of opinion that to grant the present application would be contrary to true doctrines of international law." So, also, in Hamilton's Case, 6 Op. Att.-Gen., 431, Attorney-General Cushing said: "It is the established rule of the United States, neither to grant nor to ask for extradition of criminals, as between us and any foreign government, unless in cases for which stipulation is made by express convention."

* * *

These opinions are very far from sustaining the position assumed by Secretary Seward in ordering the surrender of Arguelles to the Spanish authorities. Only one of them, that of Attorney-General Lee, given in 1797, claims that extradition, in the absence of treaties, has any basis in the law of nations; and even he did not hold that the duty could be discharged by the executive department of the Government, unless it was expressly empowered for this purpose by the legislative action of Congress.

The question of international extradition has frequently come before the courts of this country; and, with a single exception, the opinions expressed are unanimous to the effect that there is no obligation to surrender fugitive criminals, except as provided for by treaty stipulations. Chancellor Kent, In the Matter of Daniel Washburn, 4 Johns. Ch. 105, who was charged with theft in Canada, and brought before him on habeas corpus in 1819, expressed the following opinion: "It is the law and usage of nations, resting on the plainest principles of justice and public utility, to deliver up offenders charged with felony and other high crimes, and fleeing from the country in which the crime was committed, into a foreign and friendly jurisdiction. When a case of that kind occurs, it becomes the duty of the civil magistrate, on due proof of the fact, to commit the fugitive, to the end that a reasonable time may be afforded for the Government here to deliver him up, or for the foreign government to make the requisite application to the proper authorities for his surrender. * * * Whether such offender be a subject of the foreign government, or a citizen of this country, would make no difference in the application of the principle." A similar opinion is

[ocr errors]

expressed in his Commentaries, third edition, vol. 1, p. 36.

Chancellor Kent is very high authority; yet the doctrine here stated is not supported, but rather expressly contradicted by the judiciary of the country. In The Commonwealth v. Deacon, 10 Serg. & Rawle, 125, Chief Justice Tilghman, of the Supreme Court of Pennsylvania, had occasion, in 1823, to consider this subject; and after an elaborate review of the opinions of "respectable authors, the practice of nations and judicial decisions," he came to the following conclusion: "Upon the whole, the safest principle seems to be that no State has an absolute and perfect right to demand of another the delivery of a fugitive criminal, though it has what is called an imperfect right, that is, a right to ask it as a matter of courtesy, good will and mutual convenience. But a refusal to grant such request is no just cause of war." The mere right to ask the delivery, which is the only right conceded by the chief justice, is really no right at all, since it imposes no obligation.

In The United States v. Davis, 2 Sumn. 482, Justice Story, in stating the opinion of the court said, in 1837: "We are of opinion that, under the circumstances established in evidence, there is no jurisdiction in this case." In answer to the suggestion of the district judge, that Davis should be remanded to the foreign government for trial, Justice Story remarked: “That he had never known any such authority exercised by our courts, except where the case was provided for by the stipulations of some treaty. He had great doubts whether, upon principles of international law and independent of any statutable provisions or treaty stipulations, any court of justice was either bound in duty, or authorized in its discretion, to send back any offender to a foreign government whose laws he was supposed to have violated." The district judge assented to this view, and the prisoner was discharged.

In the Case of Jose Ferreira Dos Santos, 2 Brock. 493, Judge Barbour, who was subsequently appointed as one of the justices of the Supreme Court of the United States, remarked that the solution of the question presented to the court depended upon that of two others: "1. Has a nation, whose citizen or subject commits a crime within its own jurisdiction, and is afterward found within that of another, a right by the law of nations, upon its demand, to have him delivered up by that other, for the purpose of being tried where the crime was committed? 2. If such right exists, have the judicial officers of the United States, supposing the evidence to be sufficient, any authority to act in relation to it as auxiliary to the executive department?" Both of these questions were considered at large, and both answered in the negative. Judge Barbour, in the conclusion of his deliverance, said:

« iepriekšējāTurpināt »