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instructions in Lawrence's case, of 22nd of December 1875, given by the late Attorney-General, now Minister to England, to the district attorney at New York: 'I now repeat what I have heretofore written with carefulness and urgency, and what I carefully tried to impress upon you when I saw you here, that, for grave political reasons, Lawrence must first be tried upon the charge upon which he was extradited, and upon no other, until that trial is ended ; and whether subsequent proceedings for other crimes shall or shall not be taken, must await the order of the President.'

“As the interpretation of the treaty is wholly an international question, the adjudications of the Canadian tribunals are altogether unimportant.

“With perhaps more apparent cause than his citation of the decisions of municipal tribunals, Mr. Fish refers to some remarks of Mr. (now Lord) Hammond, Under Secretary of State, to the Extradition Committee of 1868, and to a supposed opinion of the law officers of the Crown, on a Canadian case (Burley), which, from the disagreement of the jury, never became one requiring the interposition of the British Government. But that no importance is to be attached to his testimony appears from the fact that Mr. Hammand himself tells us, with regard to the course of his Government at that time in connection with extradition, that the British Foreign Office never concerns itself with a case of extradition after the man is surrendered; that its duties are ministerial throughout; that the Foreign Office is only a conduit pipe, and that it would not ask for a man to be given up except on the recommendation of the Home Department. Mr. Hammond finally refers to Sir Thomas Henry for a full explanation of the manner in which extradition proceedings were conducted.

“On a recent occasion, in a note to the Home Department, January 4, 1876, which we have cited, Sir Thomas Henry says, I have referred to the answers given by Mr. Hammond, and they relate to one case only, namely, the case of “Burley:" it was a Canadian case, and I think it will be seen that Mr. Hammond had not a very perfect knowledge of what occurred in that case; but as Mr. Fish has relied upon it, I would beg to refer to the report which the committee made after having heard the evidence of Mr. Hammond, and of other witnesses who differed from him. In page iii, Resolution 7, it will be found that the committee reported that every arrangement should contain an express stipulation that 'no person shall be put upon his trial, etc., for any crime other than that on account of which he was surrendered' (North America' N. 1, 1876, p. 66).

“ This investigation, it is to be remembered, took place in 1868, and consequently before the Act of 1870; and it shows that the course, of which Mr. Fish now complains, was not pursued in the case of the American treaty only. Supposing Sir Thomas Henry was asked by a member of the committee, a man had been acquitted

of the offence for which he was transported to France, how could he put the authorities in motion to be returned to this country? If they did not immediately return him, answered Sir Thomas Henry, our Government would be bound to claim him. Of course, after his acquittal he is a free agent, and if he likes to stay in France he can do so, but he has a right to claim to be returned to this country; and if the French refused to deliver him up, it would be for our Secretary of State for Foreign Affairs to say, “You must reconduct him to the frontier, and if you do not, we will break off the treaty.'

“We have always that hold upon them, that if they are guilty of bad faith, we can break off the treaty.' The Solicitor-General having said : But that is the only hold there is; there is no treaty obligation to reconduct him to the frontier, is there?' 'No' Sir Thomas Henry answered, but it is their practice' ("Report of the Committee on Extradition,' p. 23).

“ Though in modern times it is considered as a part of the public law-a principle which the existence of exceptional cases provesthat there shall be no extradition for political offences, there is in the treaty between England and the United States no prohibition to that effect, unless it be found in the absence of political crimes in the enumeration of those for which extradition may be demanded,—a rule of interpretation which, when applied in other cases, Mr. Fish ignores.

Lord Derby says, in his note of May 4th to Mr. Hoffman, • While dealing with this part of the case, I would ask how the United States Government is prepared to reconcile the views expressed in your note in favour of the assertion of the right of asylum for political offences with the principle you have been instructed to advocate ?

“There is no principle of international law more clearly admitted than that advanced by you, that each State is judge of its own administration of justice; and with regard to the right of asylum for political offences, it is clear that the nation surrendering is to be the judge of what is, or is not, a political offence, the more so because opinions differ in different countries on this question.

“ But if the principle contended for in your note be correct, what is to prevent the United States Government from claiming a prisoner from this Government for an extradition crime, and trying him afterwards for an offence which in this country would be deemed a political offence, but which in the United States might be viewed under a different aspect ?'

"Mr. Fish, in his note of May 22, 1876, to Mr. Hoffman, answered Lord Derby's suggestion by saying that 'the inherent, inborn love of freedom, both of thought and of action, is engraved in the hearts of the people of this country so deeply, that no law can reach and no administration would dare to violate it (* 44 Cong. 1 Sess. H. R. Ed. Doc.,' No. 173, p. 35).

“ Of the twenty-one treaties made by the United States, fifteen - viz., those with France, Switzerland, Austria, Baden, Venezuela, Sweden-Norway, Mexico, Hayti, Dominican Republic, Italy, Nicaragua, San Salvador, Orange Free State, Ecuador, and Belgiumguard by express provision against their application to political crimes; five-namely, those with England, Hawaii, Prussia, Bavaria, and Hanover-are silent on the subject. One, the treaty with the two Sicilies, contains a provision on this point of an anomalous character, which is especially remarkable, considering the period at which it was made, and the character of the Neapolitan Government at the time.

" Mr. Fish alludes with satisfaction to the course of England and the United States since the existence of the treaty in avoiding all reclamations of political offences. Is this proposition entirely true? Has he forgotten the feeling manifested at Washington, when, in the case of certain Confederate officers, the Commission of the Confederate Government was received by British judges as an answer to charges by which it was attempted to bring the acts of those officers within the enumerated crimes of the treaty. Whether the offence be a political act, it has already been seen, is a matter to be decided by the extraditing State, and its decision is a protection for the political exile; but if any trial may be had for an offence not within the mandate of extradition, the Government asking the surrender, when once in possession of the extradited individual, may try him for what the extraditing Government would consider a political offence, inasmuch as the views of what constitute such an offence may differ materially in the two States.

“It is not with England alone that we have Treaties of Extradition, while from the fact that her jurisprudence as well as her language is the same as our own, fewer difficulties of construction (though our diplomacy has not been entirely exempt from them) might be expected than in the case of Powers whose laws, expressed in a foreign tongue, are founded on a wholly different system. But the same rule which the United States and Great Britain apply in their reciprocal demands, neither can deny to the other Powers to which it places itself under similar obligations.

(To be concluded in next Number.)

pace 295


The case of Batchelor v. Mackersy and Pattison, decided recently by the First Division, although it may not establish any new legal point, presents a clear statement of the law relating to counsel and agents, and is therefore of very considerable importance to the legal profession. The facts of the case are probably already well known through the newspaper reports. It was an action directed by an

unsuccessful client against both his agent and counsel, to whose conduct he, after the fashion of not a few of his class, attributed the failure which had attended a previous litigation. The Lord President, in giving judgment, took the opportunity to state, with that clearness and precision which always characterize his judgments, the law relating to counsel and agent, and their liability to their eniployers. The counsel, who is so situated that he cannot recover at law any remuneration for his services from the client, is naturally in the most favourable position so far as freedom from control of the latter is concerned. Of course, if malice or a bad case of neglect is proved against a counsel, he must take the consequence like his neighbours, and rightly too. But apart from this he is quite safe. He must be left to follow his own judgment; and so long as a client continues to employ him, it is assumed that he is satisfied with that judgment. The only remedy which the client has is to take the case out of the counsel's hand, and either conduct it himself, as Mr. Batchelor ultimately did, or employ some other learned gentleman who is more disposed to follow his directions. Probably no one except Mr. Batchelor will be disposed to dispute the reasonableness of the law as thus laid down in this recent decision- What is the use of having such a profession as that of advocate, what is the meaning of the word “counsel,” if a client is not to abide by the advice and follow the course suggested by those whom he employs ?

As regards the agent, his position is not quite so favourable. There have been successful actions against agents. On the other hand, agents have, as is well known, certain advantages denied to counsel, and they are entitled to make capital out of the risk which they run. But, in addition to this, they have the counsel to fall back upon, and under his shadow, so to speak, they are safe. This is very clearly brought out in Batchelor's case by the remarks of the Lord President to which we have already referred, but indeed the law upon this point was already well established.

Another point of less importance arose in the discussion upon the auditor's report in this case. It seems that the counsel for the defenders had not accepted of fees during the progress of the case. In taxing the accounts, however, the auditor allowed of reasonable charges as fees to be recovered from the opposite party, and these charges were approved of by the Court. The ground of judgment was simply this : because a man does not choose for some reason or other to take money from his own client, it does not follow that he is not to recover from that client's opponent when the result of the action has rendered the latter liable for its expenses. So clear is all this, that had there not been some obscurity to get rid of in the Act of Sederunt, the point could have admitted of no doubt.

The fame of Mr. Lockyer is perhaps sufficient to attract a certain amount of attention to any case in which he comes to the front. That recently before the Court had peculiar interest, apart from

the legal question raised. It threatened to open up a romance which appeared to have been closed nearly forty years ago. fortunate that by the decision of the Court the romance itself was not revived. The case presented to the Second Division very little difficulty. The Justice-Clerk almost apologized for his elaborate judgment in his reference to the interest of the topics raised, and Lord Neaves was only at a loss upon what ground to throw the case out, so many presented themselves. Indeed it is difficult to conceive a case brought under less favourable circumstances for success.

Except for the plea founded upon the obscurities of Canon Law, it was clearly hopeless to get over the plea of res judicata; and even if that had been got over, the pleas of mora and taciturnity barred the way.

The pursuer could give no good reason for the delay which had taken place in renewing his proceedings in the Court of Session. The witnesses were dead, the facts forgotten. Had the Second Division decided the preliminary pleas in his favour, the hardship to the defenders would have been great.

The case of Cumstie v. Cumstie will prove of much interest to all who love the puzzler of fee and liferent, and to whom there is a charm in the word "allenarly." The decision renders still more potent the effect of that word. When it is made use of, there is restriction to a liferent, although a destination “to heirs whatsoever” follow. A father destined his property to three sons in liferent, for liferent use "allenarly," and to their issue in fee, whom failing, to their heirs whatsoever. One of the sons died without issue, and leaving a trust settlement disposing of his share. The Court (dissenting Lord Deas) held that the deceased was only a liferenter, and that his share fell to his younger brother under the destinations to heirs. Lord Deas, on the other hand, held that upon the failure of issue the fee vested in the deceased, who had therefore a power of disposal. The opinions in this case contain an interesting review of the law relating to fee and liferent, and the dissent of Lord Deas is supported by an argument of singular force.

Reviews. A Treatise on the Law of Landlord and Tenant. By ROBERT

HUNTER, Advocate. Fourth Edition. Edited by WILLIAM

GUTHRIE, Advocate. Edinburgh: Bell & Bradfute, 1876. This well-known book has come to a fourth edition in some fifteen or sixteen years. The reason of this, which in the case of a Scotch law-book is a success, is not far to seek. It treats of a subject of great interest to a large body of the community, and it is written

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