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TIIE ALBANY LAW JOURNAL.
tained against a ship where the owners were not been equally divided upon the question. In Phillips themselves personally liable, or where their personal v. Foxall, L. R., 7 Q. B. 666, it is said that in " a conliability had not been given up, as in bottomry tinuing guaranty for the honesty of a servant, if bonds, by taking a lien upon the vessel. The lia- the master discovers that the servant has been bility of the ship and the responsibility of the guilty of dishonesty in the course of the service, owners in such cases are convertible terms; the ship
and, instead of dismissing the servant, he chooses is not liable if the owners are not responsible; and,
to continue him in his employ without the knowl
edge and consent of the surety, express or implied, cice cersa, no responsibility can attach on the own- he cannot afterward have recourse to the surety to ers if the ship is exempt and not liable to be pro- make good any loss which may arise from his disceeded against.” As an action could not be main
honesty during the subsequent service." See, also,
Sanderson v. Aston, L. R., 8 Ex. 73; Burgess v. Eve, tained at common law by the libelants in the
L. R., 13 Eq. 450. But see Postmaster-Gen. v. Reeder, principal case against the owners of the ship, the 4 Wash. C. C. 678; Dox v. Postmaster-Gen., 1 Pet. ship would not be liable. See, also, the Marengo, 318. 1 Low. 52; Steamboat Orleans y Phoebus, --11-Pet.
In Moore v. Ulster Banking Co., 12 Ir. L. T. Rep. 2, 175; Minturn v. Maynard, 17 tow477; Grant v. decided by the Irish Court of Queen's Bench on Poillon, 20 id. 162; Kellup Emerson, 2 Curt. the 10th of November last, the facts were these: 79; Ward v. Thompson, 22/How. 330; 1 Pars. on
Six weeks before his death one Moore indorsed a Ship. 116.
bank deposit receipt, which was not a negotiable
instrument, and handed it to one McSweeny, saying In United States v. Writtel, 1 N. J. Law Jour. 4,
it was for Mc$weeny's niece, who had performed
certain. service for Moore, and also saying that it recently decided by the United States District
On the day after Moore's death McSweeney took the defaulting postmaster were not discharged by an
receipt to the bank which issued it, and was paid extension of time for paying over moneys due,
the interest and a new receipt was given him in his
own name, for the benefit of his niece. The admingranted to him by the special agent of the gov- istratrix Moore brought action against the bank ernment without notice to theut, nor were they dis- for the an sunt secured by the receipt, and she was charged by the circumstance that he was continued hell entitled to recover, the court saying that the in office after it was known that he was a defaulter:
indoxement of the non-negotiable instrument did
operate as as equitable assignment, nor did it That mere forbearance on the part of thong amount to a-tomato mortis causa, being incomplete; ment officers, in such a case, in the absence of and as it was without consideration, the court could fraud, will not discharge the sureties, is well estab- not complete it. If the indorsement constituted lished. See Locke v. United States, 3 Mass. 446;
McSweeny the agent of Moore, the agency was re
voked by the death of the principal. The case of United States v. Kirkpatrick, 9 Wheat. 720; United Edwards v. Jones, 1 My. and Cr. 226, is cited in supStates v. Van Zandt, 11 id. 184; United States v. port of the conclusion of the court. Here the obSimpson, 13 Penn. St. 437. But the right of a
ligee of a bond, five days before his death, signed
a memorandum not under his seal, which was insurety to be informed of acts of dishonesty of his
dorsed on the bond, and which purported to be an principal, and known to the employer, who is in
assignment of the bond without consideration to demnified, seems to be well settled. A party taking the person to whom the bond was delivered. This à guaranty from a surety must not allow him to was held not a valid donatio causa mortis. See, also, enter into the contract under false impressions. If
Elison v. Ellison, 1 White and Tud. L. Cas. Eq. 382;
Richards v. Delbridge, L. R., 18 Eq. 11; Lloyd v. he knows any thing in regard to the situation or
Pughe, L. R., 8 Ch. 88; Veal v. Veal, 27 Beav. 303. character of the principal which increases the risk A more liberal rule seems to be adopted by the of the surety, and withholds his knowledge, it is a American courts. In Grymes v. Hone, 49 N. Y. 17; fraud which releases such surety. The reason is
10 Am.R. 313, an assignment of bank stock was made in writing by the owner, a man eighty years of
age, that the surety has the right to infer from the
who handed the assignment to his wife with direcsilence of the employer that he regards the princi- tions to give the same to his daughter, the assignee, pal as a trustworthy person. Smith v. Bank of in case of his death. Five months afterward hé Scotland, 1 Dow. 272; Railter v. Matthews, 10 Cl. &
died. The court held this to be a valid gift causa
mortis, and that the court could enforce it notwithF. 934; Insurance Co. v. Lloyd, L. R., 10 Ex. 532.
standing the stock had not been transferred on In the last case, however, the principle was quali- the books of the bank. The gift of a savings bank fied by holding that in cases of guaranty the con- book with the intention of transferring the deposcealment, in order to vitiate the contract, must be
its mentioned therein by one in extremis has repeat
edly been held to be a valid gift of the deposits. fraudulent. It it said, however, that while this is
Camp's Appeal, 36 Conn. 88; 4 Am. R. 170; Tillingthe doctrine in equity, it is an open question hast v. Wheaton, 8 R. I. 526; 5 Am. R. 621. See, also, whether such a defense is available in a suit upon Gardner v. Merritt, 32 Md. 78; 3 Am. R. 115. See, the bond. In Locke v. United States, 3 Mass. 453,
however, Curry v. Powers, 16 Alb. L. J. 117, where
a gift of a pass book of a bank, with a check upon Judge Story was inclined to doubt its validity as a
the funds deposited, payable four days after dolegal defense, and the Supreme Court, in Etting v. nor's death, was held by the Court of Appeals of this Bank of United States, 11 Wheat. 59, seems to have State not to be a valid gift.
THE EXTRADITION REMEDY.
commits some other crime after his extradition, be
permitted to return to the jurisdiction from which BY SAMTEL T. SPEAR, D. D.
he was removed. The design of this article is to
ascertain whether this is the true construction of the OUVIER, in his Law Dictionary, defines Extra
extradition remedy. dition to "the surrender by one sovereign State to another, on its demand, of persons
Mr. Wharton, in his Criminal Law, seventh edi
“ The sole charged with the commission of crime within its tion, vol. 3, p. 34, section 2956 a, says: jurisdiction, that they may be dealt with ac
object of extradition is to secure the presence of cording to its laws." This surrender is not sim- the fugitive in the demanding state for the purpose ply expulsion, leaving the person free to
of trying him for a specified crime. The process is
go wherever else he chooses, but arrest and transfer
not to be used for the purpose of subjecting him ence to the government demanding him on the collaterally to criminal prosecutions other than that charge of crime. It, consequently, denies to the specified in the demand. Provisions guaranteeing accused the right of asylum, and, by a summary
to the fugitive the right to leave the demanding process, removes him from the territory and protec- country after his trial for the offense for which he is tion of the laws of the surrendering government, and
surrendered, in case of acquittal, or in case of conforcibly places him within the jurisdiction and ope
viction, after his endurance of punishment, are
When not, they ration of the laws of the government to which he is incorporated in many treaties. remanded. It gives the latter possession of his per. It is an abuse of this high process, and an infringe
should be made the subject of executive pledge. son for the purpose of trial and punishment, and is, hence, an auxiliary process through which one gov
ment of those rights of asylum which the law of ernment contributes to the administration of justice nations rightly sanctions, to permit the charge of by another. The necessity for extradition grows out
an offense for which extradition lies to be used to of the fact that, except in cases specially provided for
cover an offense for which extradition does not lie, by treaty, the penal laws of one country cannot
or which it is not considered politic to invoke.” operate within the jurisdiction of another. The Mr. David Dudley Field, in his International sovereignty of a nation within its own territory is Code, has a chapter on extradition, the provisions exclusive and absolute. See Schooner Exchange v. of which, as he says, "are based mainly on those of McFadden, 7 Cranch, 116.
existing treaties, particularly the numerous AmeriGovernments, not choosing blindly to trust each can treaties and the most recent French treaties.” other on this subject, require information as to the In section 237 he states the following rule: “No person to be delivered, as to the crime or crimes person surrendered * shall be prosecuted or with which he is charged, and as to the evidence punished in the nation to which he is surrendered, showing the commission of such crime or crimes. for any offense committed previous to that for The demanding government must first make out a
which his surrender was demanded, nor for any ofcase; and whether it has done so or not, in any fense which was not mentioned in the demand.” particular instance, the government upon which the This represents the law as derived from the provisdemand is made will always judge for itself. ions of “existing treaties,” and as Mr. Field thinks
The nature of the transaction, as between the two it ought to be. governments, naturally raises the question whether An article appeared in the American Law Review, the jurisdiction acquired by extradition is general, vol. 10, p. 617, understood to have been written by and may be extended to the trial and punishment Judge Lowell, of the United States District Court, of any crime, or special, and must, therefore, be in which the author says: “The question is a limited to the avowed purpose for which it was simple one; the answer, to an ordinary mind, seems granted on the one hand and acquired on the other. equally so; and the writers on the general subject The demanding government specities a case: and if have expressed but one opinion upon it, so far a a surrender be made on the basis of the specifica- they have expressed any. It is, whether a person, tion, then it is made with reference to that case, surrendered by one government to another upon and not to some other supposable case. The mere charge and proof of the commission of a certain statement of the facts as to demand and delivery crime, can lawfully, and against the objection of would seem to imply, as a matter of good faith, that the surrendering government, be tried for a differthe proceeding necessarily qualifies the jurisdiction ent crime committed before his surrender. That which it secures, and limits it to the purpose for he cannot, seems at once the dictate of common sense which it was secured. Hence arises the doctrine and of ordinary justice; and so are the authorities. that the party accused can be tried and punished *
We hold it to be clear, on grounds of only for the crime or crimes named in the demand reason and authority, that a person surrendered by and delivery, and that, when this end has been one sovereign to another, under a treaty of extradigained, he should, unless he elects to remain, or tion, is to be tried for that crime, and that only,
for which the surrender was asked and obtained," grounds on which it is made. The State in which The article was prepared with reference to the con- he has taken refuge ought not to surrender him troversy between the United States and Great until those grounds have been made clear to it; in Britain, then pending, in regard to the case of other words, it should ascertain whether the crime Winslow.
committed is of a character to justify bis surrender. Mr. William Beach Lawrence, in an article pub- In truth, the criminal by his flight to another State lished in the Albany Law Journal, vol. 14, p. 96, becomes (although but for a time) the subject of writes as follows: “All the right which a power ask- the supreme power of that State, and immediately ing an extradition can possibly derive from the sur- enjoys the protection and guardianship of that render must be what is expressed in the treaty, and Stato. From that guardianship he cannot be forciall rules of interpretation require the treaty to be bly taken except under a special agreement, the strictly construed; and, consequently, when the terms of which, we presume, certainly do not extend treaty prescribes the offenses for which extradition further than to those very grounds on which the can be made and the particular testimony to be surrender was demanded and granted. required, the sufficiency of which must be certified The surrendering State gave up the criminal on conto the executive authority of the extraditing coun- sideration of the grounds stated, not of any differtry, the State receiving the fugitive has no jurisdic-ent grounds.” Kluit's idea is that an extension of tion whatever over him, except for the specified the jurisdiction beyond the grounds stated would be crime to which the testimony applies.” Mr. Law- a violation of the faith involved in the transaction, rence supports this general position by referring to A third authority is Heffter, the German writer, Billot, MM. Faustin-Hélié, Legraverend, Trébutien, who says: “The individual whose extradition has Bertauld, Le Sellyer, Morin, Foelix et Demangeat, been granted cannot be prosecuted nor tried for Brouchoud, Ducrocq, Duverdy, Bonafos, Morel, any crime except that for which the extradition has Dalloz, and Mangin.
been obtained. To act in any other way, and to Mr. Frederick W. Gibbs published a pamphlet on cause him to be tried for other crimes or misdeExtradition Treaties, in London in 1868, in which meanors, would be to violate the mutual principle of he says that political offenses are not grounds of asylum and the silent clause contained by implicaextradition, and then adds: "In close connection tion in every extradition." with the foregoing principle, and designed undoubt- The circular of the French Minister of Justice, edly to support it, follows another, to which our issued April 15th, 1841, is also quoted. In this attention has been much directed, but which is circular the Minister says: “The extradition detreated by foreign writers as well established, -that clares the offense which leads to it, and this offense a person surrendered is liable only for the offense alone ought to be inquired into. So that if during on account of which his extradition was obtained.” | the prosecution for the crime which has led to the This doctrine he sustained by citing several author- extradition there should arise the evidence of a new ities.
crime, a new demand of extradition ought to be The Lord Chancellor of England, in his speech on made." the Winslow case in the House of Lords, published The case of Dermenon, as reported in Dalloz's in The Foreign Relations of the United States for Jurisprudence, is mentioned by the Lord Chancellor. 1876, pp. 286-296, presents an array of European | Dermenon had been surrendered by the Canton of authorities to show “that, apart altogether from the Geneva to France on the charge of fraudulent bankwording of treaties, there is a silent and implied ruptcy. On that charge he was acquitted, but there condition in extradition that the crime for which was another charge against him for which he had the surrender of a man is asked must be specified, not been surrendered. The question arose whether and that it is for that crime alone that he must be he should be tried on this other charge, or sent back sried.” One of these authorities is Foelix, who, in to the Canton of Geneva. The answer given by the his treatise on Private International Law, devotes Minister of the Interior was as follows: “It is only an entire chapter to the subject of extradition, and, as accused of the crime of fraudulent bankruptcy among others, lays down the following general rule that Dermenon has been delivered up to France by in regard to it: “The person who is surrendered the Canton of Geneva. He is now purged of that cannot be prosecuted or condemned except for the charge by the decree of acquittal. Dermenon is crime in respect to which his extradition has been therefore in the same position as if only a mistleobtained."
meanor had been laid to his charge. It is clear that A second authority is Kluit, an eminent jurist of in that case his extradition could not have been Holland, who, in answer to the question whether it obtained. It follows that we cannot take advanis “lawful to punish the fugitive for any other tage of his having been given up to the French aucrime than that for which he has been surrendered," thorities upon a different ground to try him for acts says: “The request for the surrender of a criminal which have not and could never have been the is generally accompanied by a statement of the grounds of his extradition. The Minister of Justice has consequently directed the procureur-général to A second element in the treaty is the enumeraplace Dermenon at your disposal, and I hasten, fortion of seven specific crimes as the only ones in my part, to request you to have him immediately respect to which either party shall have the right conducted to the frontier, where he should be of demand, or be subject to the obligation of placed once more in the hands of the Genevese au- delivery. Both parties restrict themselves to this thorities.”
list of crimes; and this by necessary implication Turning from these authorities, we come now to excludes the remedy from all other crimes precedconsider a much higher authority, and this we finding the extradition, as effectually as if such excluin the extradition treaties of the United States. sion bad been stated in express words. The treaty All these treaties specify certain crimes which, is the only ground of the remedy in respect to any with proper proceedings, may be the ground of ex- crime ; and hence the remedy cannot go beyond tradition. In none of them is it expressly said the offenses enumerated, without exceeding and in that the crime charged in the demand, and which this sense violating the express provision of the was the basis of the delivery, is the only crime for treaty. To assume that extradition may be demanded which the surrendered person may be tried under for any one or more of the crimes named, and the jurisdiction thus acquired. Is this principle, that the person, being surrendered, may then be though not formally stated, necessarily implied in tried and punished for any other crime at the pleasthe express provisions of these treaties? We take, ure of the demanding government, is to render for the purpose of answering this question, the alike meaningless and useless the specific enumeratenth article of the treaty of 1842 with Great tion of crimes. This manifestly is not consistent Britain, the construction of which was the matter with the fact of enumeration, and in practical effect of controversy in the Winslow case, remarking changes the treaty itself. Extradition is a means that, as to the points in this stipulation to to promote the administration of justice in respect which we shall refer, it is an example of every ex- to a certain class of particularly designated crimes; tradition treaty of the United States, without a and, in omitting all other classes, the parties virtusolitary exception. The argument will, therefore, ally stipulate that the remedy shall operate only apply to the whole.
within the limits of the crimes enumerated. To This treaty, in the first place, contains the gen- carry the jurisdiction beyond these limits is to make eral stipulation that the two governments will, the treaty serve an end for which it contains no "upon mutual requisitions” made in a certain way, provision, and which, moreover, the contracting " deliver up to justice " a specified class of persons, governments disclaim by the most obvious implicaindicated by the crimes laid to their charge, by the tion. The enumeration is the boundary which they locus delicti or place where these crimes were com- have chosen to fix, and they cannot, after jurisdicmitted, and by the place where they have sought tion has been acquired, exceed this boundary in the asylum and are found. The “justice” here referred application of the remedy, without violating their to relates to the offenses specified as extradition own agreement. crimes. It is not the general justice of either A third element in the treaty is the fact that the country, but justice in relation to these crimes, and person, claimed by the demanding government, must embraces only so much of the penal code as refers be “charged” with having committed within its to them. It is hence limited as to the persons to jurisdiction some one or more of the crimes enumerwhom and the offenses to which it applies. Judge ated. The delivering government is entitled to know Benedict, in The United States v. Lawrence, 13 what the offense is for which the surrender is deBlatchf. C. C. R. 295, said that the delivering up manded. In no other way can it determine whether to justice, as provided for in the treaty, is "" a sig- it comes within the treaty or not. No offense outnificant and comprehensive expression, plainly im- side of the treaty is a ground of extradition; and no porting that the delivery is for the purposes of offense within the treaty is such a ground until it public justice, without qualification.” This idea, has been distinctly stated to the government asked with all due respect to the learned judge, is incon- to make the delivery. The statement of the parsistent with the specification of particular crimes ticular offense, as the ground of the right claimed, for which the delivery is to be made. Why upon limits the demanding government to that offense, this theory specify at all ? Why not, according to since, if a delivery be made, it is made for that the view advocated by Mr. Westlake, dismiss all offense and for no other. It was for the crime enumeration of offenses, and deliver up for any “charged” that the surrendering government withcrime, except that of treason or sedition ? Such a drew from the accused the right of asylum within treaty would be in harmony with the doctrine of its own territory, and the receiving government Judge Benedict; but it so happens that the extra- cannot extend its penal jurisdiction to some other dition treaties of the United States are not con- crime, whetber within the extradition list or not, structed on this principle.
without going beyond the terms of its own demand when made, and beyond those of the surrender hand him over to the jurisdiction of the demanding when made. The necessity of making a specific government, for the purpose specified, and on the charge as the basis of demand under the treaty, and basis of the facts shown by the evidence. The surthe surrender of the alleged fugitive upon that basis, render, if made, is made for that purpose, and for constitute a just and proper limitation of the jurisdic- no other, and upon the evidence offered and contion to the purpose for which it was asked on one sidered sufficient to make out a prima facie case of hand, and granted on the other.
forgery, and upon no other evidence. Now, unless A fourth element in the treaty provides that the we adopt the absurd proposition that the same evi“criminality” charged in the demand shall be sus- dence is equally pertinent to prove a case of murder, tained by such evidence " as, according to the laws or some other crime, in its facts essentially different of the place where the fugitive or prisoner so from forgery, then the jurisdiction acquired by the charged shall be found, would justify his apprehen- delivery is, by the very terms of the rule in respect sion and commitment for trial, if the offense had to evidence, limited to the crime for which the there been committed.” This is a most important delivery was made. If not so limited by the receivprovision in relation to the point under considera- ing government, then one of the fundamental stipution.
lations of the treaty is completely ignored and The “criminality” referred to is a particular rendered a nullity. The surrendering government, criminality, and the express words of the stipulation in every such case, would have no opportunity to require that the proof of its existence shall show a pass judgment upon the evidence with reference to prima facie case of guilt, according to the laws of the question of its duty to make a surrender. It the country asked to make the delivery. The de- would, as to the purpose for which it did make the livering government, under this rule, decides for surrender, be cheated by what would be equivalent itself upon this question of fact. To change the to an act of bad faith; and whether the cheat was case after jurisdiction has been acquired and put deliberately planned or was simply an after-thought, the party on trial for a different crime, upon evidence would make no difference in the fact itself. entirely different in its relations and in what it The manifest intention of these stipulations is to proves, and in respect to which the surrendering maintain the right of asylum and exclude the extragovernment has never judged whether it did or dition remedy in respect to all cases not enumerated. did not make out a prima facie case, is manifestly to In no other way can this end be gained. If govviolate the rule in regard to evidence, which is ernments, upon receiving from each other fugitives an express part of the stipulation. Suppose the from justice, may in their discretion exceed the crime charged to be murder, that the accused was limit thus established when they come to deal with surrendered upon evidence relating to murder, that these fugitives, then they may exceed it to any exbeing tried on this charge, he was acquitted, and tent. The provision that there shall be no extradithat he was then tried and convicted on the charge tion for political offenses becomes a nullity if the of forgery. The evidence upon which he was de demanding government, having obtained the cuslivered referred to murder, and on this the delivering tody of the fugitive, chooses to treat it as such. government passed judgment; but the evidence All the barriers against a perversion and abuse of upon which he was convicted referred to forgery, the remedy are swept away. The specification of and on this the delivering government passed no extradition crimes, the charge of a particular judgment. And yet the right of such preliminary crime as the ground of the demand, and the rule judgment, as to the question whether the criminality of evidence in regard to that crime, impose no recharged is shown by sufficient evidence, is one of straint whatever upon the jurisdiction when once acthe express provisions of the treaty. Can that right quired. No nation, having any respect for itself, be violated without violating the treaty ?
especially one that, like the United States, recogCrimes so differ in the acts which constitute them nizes the prima facie right of unmolested asylum in that they are not all provable by the same evidence. respect to all persons coming under its jurisdiction, The felonious killing of a human being is in its acts and committing no offense against its laws, would, essentially different from the crime of forgery, and with this construction, consent to make an extradihence the evidence that may be sufficient to prove tion treaty with any other nation. Let this conthe one is not at all relevant as proof of the other. struction prevail, and tliat, so far at least as the If the crime charged, and for which a delivery is de- United States are concerned, would speedily be the manded, be forgery, then the evidence, whether con- end of all such treaties. sisting in “ depositions, warrants, or other papers,” The conclusion that we derive from this examinaor in the oral testimony of witnesses, or in both, tion of the treaties themselves is, that their express must show the necessary facts in respect to forgery, provisions necessarily imply a limitation of the exand, this being done, the government asked to tradition remedy, in its judicial and penal action, make the delivery is bound by express stipulation to to the specific crime or crimes for which it was inwithdraw from the accused the right of asylum, and voked, and in respect to which the delivering gov