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stole a package of money and escaped. The defendants had separate trials. In the case of Johnston, the court held that the entry into the house was a constructive breaking, and that a conviction was proper under a count charging burglary by "breaking and entering." See, as supporting this doctrine, 2 Wharton's Cr. Law, § 1,539; Roscoe's Cr. Ev. 307; 3 Chitty's Cr. Law, 856, citing numerous authorities; Ducher v. State, 18 Ohio, 317. the case of Rolland, the defendant also opened an inner door with the intent to secure another person, and thereafter to go to the bank, which was in another room, and rob it. This was held to constitute burglary, though it was said that it would not be if the door was opened with the intention of escaping. In a previous hearing of the same case on error (82 Penn. St. 306; 22 Am. Rep. 758), a breaking out was held not burglary at common law. But a contrary doctrine was held in State v. Ward, 43 Conn. 489; 21 Am. Rep. 665. In State v. McPherson, 70 N. C. 239; 16 Am. Rep. 769, where defendant was charged in an indictment with "breaking and entering" a house it was held error to charge the jury that if they believed “the defendant, however he got into the house, broke out of it, he was guilty." See, also, Clarke's Case, 2 East's P. C., ch. 15; 1 Hale, 554, where it is said: "If a man enter in the night time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary." And see 4 Black. Com. 223, and note to Rolland v. Commonwealth, 15 Alb. L. J. 55.

Whether any of the contracts of an infant are void is a question which has led to some discussion. The rule at one time was understood to be (Keanes v. Bagcott, 2 H. Black. 511) that when the court can pronounce the contract to be for the benefit of the infant as for necessaries, it is good; when to his prejudice, it is void, and where the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the infant. In Harner v. Dipple, 31 Ohio St. 72, it is said that the current of more recent decisions repudiates the distinction between void and voidable contracts on account of their prejudicial nature, and holds them all to be voidable only. In this case it was held that an undertaking by an infant as surety for the stay of execution is not void, but only voidable, and when ratified by him after arriving at majority, becomes a valid and enforceable contract. In Owen v. Long, 112 Mass. 403, a surety contract was held to be voidable only, for the reason that such contract, as matter of law, cannot be said to be necessarily prejudicial to the surety. Also, an account stated is held to be voidable only. Williams v. Moor, 11 M. & W. 255. Also, a conveyance by lease and release. Touch v. Parsons, 3 Barrows, 1794. Whitney v. Dutch, 14 Mass. 457, it is said: "Perhaps it may be assumed as a principle that all simple contracts by infants, which are not founded on an illegal consideration, are strictly not void, but only voidable, and may be made good by ratification. They remain a legal substratum for a future assent, until avoided by the infant; and if, instead of avoiding, he confirm them, when he has legal capacity to make a contract, they are, in all re

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spects, like contracts made by adults." And in Reed v. Batchelder, 1 Metc. 559, it is said: "The question what acts of an infant are voidable and what void is not very definitely settled by the authorities; but, in general, it may be said that the tendency of modern decisions is to consider them as voidable, and thus leave the infant to affirm or disaffirm them when he comes of age, as his own views of his interest may lead him to elect." See, also, the following cases, which are to the effect that an infant's contract of suretyship is merely voidable, and may be ratified. They also show, with more or less force and directness, that the distinction between void and voidable contracts of infants, on the ground of benefit or prejudice, is not sound. Curtin v. Patton, 11 Serg. & R. 305; Hinely v. Marganitz, 3 Barr, 428; Gatchin v. Cromach, 13 Ver. 330; Vaughn v. Darr, 20 Ark. 600; Shropshire v. Burns, 46 Ala. 108; Williams v. Moore, 11 M. & W. 256; Fetrow v. Wiseman, 40 Ind. 148; Fonda v. Van Horne, 15 Wend. 631; Scott v. Buchanan, 2 Humph. 468; Cole v. Pennoyer, 14 Ill. 158; Cummings v. Powell, 8 Texas, 80; 1 J. J. Marshall, 236; Mustard v. Wohlford's Heirs, 15 Grattan, 329.

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In State v. Hyer, 10 Vroom (39 N. J. Law), 598, it is said that although the practice of courts is to advise juries not to convict a defendant on the uncorroborated testimony of an accomplice, yet a conviction founded on such evidence is strictly legal. This doctrine is supported by high authority. In Atwood and Robbins' case, 1 Leach's C. C. 464, which was a trial for robbery from the person, the only evidence to identify the prisoners and connect them with the robbery was the testimony of an accomplice, that he and defendants were the persons that committed the crime, and a conviction was held legal. In Rex v. Durham, 1 Leach's C. C. 478, the case was permitted to go to the jury upon the sole evidence of an alleged accomplice, the judge stating that the twelve judges who sat in the Atwood and Robbins' case were unanimously of the opinion that the practice of rejecting an unsupported accomplice was rather a matter of discretion with the court than a rule of law. In Rex v. Jones, 2 Campb. 131, Lord Ellenborough remarks, no one can reasonably doubt that a conviction is legal, though it proceed on the evidence of an accomplice. Judges in their discretion will advise a jury not to believe an accomplice unless confirmed." In Rex v. Wilkes, 7 C. & P. 272, Alderson, B., said to the jury, "you may legally convict on the evidence of an accomplice only, if you can safely rely on his testimony.' To the same effect see Reg. v. Farlar, 8 C. & P. 106. In Reg. v. Stubbs, 33 E. L. & Eq. R. 552, it is said "it is not a rule of law that accomplices must be confirmed in order to render a conviction valid, but it is usual in practice for the judge to advise the jury not to convict on such testimony alone, and jurors generally attend to the judge's direction, and require confirmation, but it is only a rule of practice." In 1 Wharton's Cr. Law, § 783, the author states that the preponderance of authority in this country is that a jury may convict a prisoner on the testimony of an accomplice alone, though the court may at its discretion advise them to acquit unless such testimony is corroborated on material points, and numerous authorities from different States are given in support of this statement. In Pennsylvania, the statute establishes a different rule. If the credibility of the accomplice be otherwise impeached, it is ground for new trial. People v. Haynes, 55 Barb. 450.

THE CASES OF CALDWELL AND LAWRENCE, having already argued this point, we shall for the most part here assume.

ORDINA

BY SAMUEL T. SPEAR, D. d. RDINARILY, treaties are simply compacts between nations, generally made by their executive heads, possessing in themselves no legislative character whatever, binding the faith of the contracting parties, and, as to their application and construction, the subjects of executive and diplomatic rather than judicial consideration. The Constitution of the United States, while not discarding these principles, nevertheless, in its sixth article, gives to the treaties of the United States the attributes of law, and makes them a part of "the supreme law of the land." As such, they furnish an imperative rule for the guidance of courts, both State and Federal.

The explanation of this doctrine by the Supreme Court of the United States, in Foster v. Neson, 2

Pet. 253, is that where a treaty "operates of itself, without the aid of any legislative provision," it is ❝to be regarded in courts of justice as equivalent

to an act of the legislature," and that where it requires legislation to carry it into effect, "the legis

lature must execute the contract before it can become a rule for" courts. In both cases the treaty is a law only in its internal operation among the people of the United States; and as it respects a foreign nation, it is merely a contract between the two governments, pledging their faith in reference to the matters involved. Its municipal character has no extraterritorial action, and, of course, cannot affect other countries or their rights.

The express stipulations of the extradition treaties of the United States were, in a previous article, entitled, "The Extradition Remedy, ". considered with reference to the question whether they imply an obligation as between the contracting governments, that a person extradited shall be tried only for the offense for which he was demanded and surrendered, thus excluding the right of trial or detention for all other offenses committed prior to his extradition. The answer to this question was that there is such an obligation, not, indeed, stated in positive terms, but implied in the express provisions of these treaties, and that this construction is equally implied in the legislation of Congress to carry them

into effect.

It is not proposed here to reargue this question. What we now say is that the Constitution makes this implied obligation, if real, a part of "the supreme law of the land," binding upon courts in all cases to which it applies, and, as a law, superior to any State constitution or any State enactment, and superior even to an anterior law of Congress in conflict with it. It gives to the extradited person a right arising under these treaties which courts of justice in this country are bound to respect. This results from the reality of the obligation, which,

Two of the cases in which the question was considered by the courts of this country, whether a person surrendered under a treaty can be put on trial for any other than the extradition charge, came before the Circuit Court of the United States for the Second Circuit, and were decided by Judge Benedict. These cases it is proposed to examine in this

article.

The first case is that of The United States v.

Caldwell, 8 Blatchf. C. C. R. 131, decided in January, 1871. Caldwell, in 1870, was extradited from the Dominion of Canada on the charge of forgery, for which he was not tried at all, but was indicted, tried, convicted and punished for bribing an officer of the United States, which was not an extraditable offense under the treaty of 1842 with Great Britain. (See Clarke on Extradition, sec. ed., pp. 107, 108.) He raised before Judge Benedict the question of committed prior to his extradition, other than the the court's jurisdiction to try him for any offense, Canadian authorities. The Judge held the plea to one for which he had been delivered up by the be bad, and gave him liberty to withdraw it and enter a plea of not guilty. The following extract contains the substance of the deliverance of the

Judge in respect to the question of jurisdiction:

"I am of the opinion that the relief could not be granted, for the reason that the person of the prisoner is not within the jurisdiction of the United States by virtue of any warrant issued out of this or any court. The prisoner was brought within the jurisdiction of the United States by virtue of a warrant of the executive authority of a foreign government, upon the requisition of the Executive Department of the Government of the United States; and, while abuse of extradition proceedings, and a want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much these tribunals might regret that they should have been permitted to arise. * * * * whether extradited in good faith or not, the prisoner, in point of fact, is within the jurisdiction of the court, charged with a crime therein committed; and I am at a loss for even a plausible reason for holding, upon such a plea as the present, that the court is without jurisdiction to try him. * * * * And I cannot say that the fact that the defendant was brought within the jurisdiction by virtue of a warrant of extradition for the crime of forgery affords him a legal exemption from prosecution for other crimes by him committed."

But

The doctrine here stated is that Caldwell, having been brought within the jurisdiction of the United States, not by virtue of a warrant issued by the court or that of any court, but by the surrender of a foreign government in compliance with a requisition made by the United States under the provisions of a treaty, and being there duly charged with crime, could not, as to the crime for which it would be

allowable to put him on trial, make any appeal to the treaty or the extradition proceedings under which he was thus brought into the jurisdiction. The court did not examine the treaty or pass any judgment upon its provisions, and did not consider for what crime or crimes Caldwell had been extra dited. Whether the proceedings were in good or bad faith was a matter of no consequence, except as between the two governments. These questions were immaterial, regarded as affecting the jurisdiction of the court to try the prisoner for any offense charged against him, whether it was or was not the crime for which he had been demanded on the one hand, and surrendered on the other. No plea based upon the treaty or the proceedings under it was pertinent on his lips. Such we understand to be the substance of this deliverance.

Bearing, then, in mind that every treaty of the United States, that is self-executing by its own terms, or for whose execution Congress has provided by law, is a part of "the supreme law of the land," and, as such, binding upon courts, and that Congress had provided for the execution of the extradition stipulation of 1842, with Great Britain, and that consequently that stipulation was a part of the law of the land, we propose briefly to compare the ruling of the Judge with this stipulation. Take the following points:

1. The treaty enumerates seven specific crimes as the only ones for which extradition can be had at all, and bribing an officer of the United States is not one of these offenses. By obvious implication the treaty limits the remedy which it secures to the list of crimes enumerated. If this be not so, then the enumeration is without meaning and without practical efficacy. And yet Judge Benedict, in effect, says that when possession of the accused person has been obtained under the treaty, the court may proceed to try him for any offense, whether within the list of extradition crimes or not.

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2. The treaty says that a specific crime or crimes must be charged" as the basis of the demand, and the ground of delivery, and that this charge must fix the locus delicti in the demanding country, and allege that the criminal has escaped from its justice and sought asylum, or is found within the country on which the demand is made. There can be no extradition without such a charge. And yet Judge Benedict, in effect, says, that such a specific charge having been made, and custody of the accused having been thus obtained, it is at the option of the government gaining the custody to abandon the charge altogether if it shall so please, and put the person on trial for an offense not only not within the extradition list, but not at all named or contemplated in the proceedings,

3. The treaty says that the delivery of the person accused shall be made only upon a specified

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amount of evidence in support of the charge, and that the government asked to make the delivery is to be the judge whether the crime charged is within the extradition list, and, if so, whether it is proved by evidence sufficient to call for the surrender. And yet Judge Benedict, in effect, says that when the accused party has been delivered upon evidence deemed sufficient by the delivering government, he may be tried and convicted of a crime not only not within the extradition list and not charged at all in the proceedings, but also one in respect to which not a particle of evidence in proof thereof was presented to or considered by the government that made the surrender. The right of that government, growing out of the stipulation in respect to evidence, is entirely set asle by this theory.

4. The treaty, in virtue of the above provisions, clearly implies that the right of asylum, in the country where the fugitive is found, is by the delivery impaired and withdrawn ouly to the extent and for the purpose specified in the extradition proceedings. And yet Judge Benedict, in effect, says that the moment the receiving government gets possession of the fugitive, the right is withdrawn to the fullest extent and for all purposes.

5. The treaty, in its implied obligations as arising from its own provisions, is a law of the land, and as such, a rule for the guidance of courts in settling any question of jurisdiction or of individual rights to which it is applicable. And yet Judge Benedict, in effect, and that, too, without inquiring whether the implied obligation, as claimed by Caldwell, was real or not, says that courts have nothing to do with this question one way or the other. The plea of Caldwell was bad, though he appealed to a treaty as its basis.

We confess ourselves unable to place the ruling of the Judge and the treaty of 1842, with Great Britain, side by side, without coming to the conclusion that the two are in palpable conflict. If the former stands as good law, it must stand at the expense of the latter. We do not believe that it is good law.

The fact in this case is that Caldwell was extradited for an offense for which he was not tried at all, and was tried and punished for an offense for which he was not and could not have been extradited. The jurisdiction was not used for the purpose for which it was gained, and was used for a purpose for which it was not and could not have been gained. It is difficult to conceive of a proceeding under the forms of law more entirely foreign to the nature and design of the extradition remedy, or more inconsistent with the implied obligation that results from the express stipulations of the treaty of 1842, with Great Britain, and, therefore, with that provision of the Constitution which makes a treaty

a part of the law of the land, and gives to every party, when standing before a court, whatever rights grow out of this fact. Any rule of criminal practice that can be followed only at the sacrifice of a treaty is constitutionally, in that connection, a bad rule, whatever the books may say about it as a general rule. The jurisdiction of a court over a person placed at its bar, and there charged with crime, is subject to whatever qualification the express or implied obligations of a treaty of the United States may impose, and that, too, because the treaty has the authority of a supreme law for the government of that court. It is both the right and the duty of the court to hear a plea founded on a treaty, and secure to the party making the plea whatever rights the treaty secures. The question presented is one of law.

The other case is that of The United States v. Lawrence, 13 Blatchf. C. C. R. 295, decided in March, 1876. Judge Benedict, after saying that "this case comes before the court upon a demurrer interposed by the United States to a rejoinder filed by the defendant," proceeds to make a statement in respect to the pleadings. This statement, though not positively declaring the fact, naturally gives the impression that the United States were moving for the trial of Lawrence on the charge of all the offenses for which he was indicted, all of them "being forgeries, alleged to have been committed within the jurisdiction of this court, and all, by statute, offenses against the United States." One of the items in the plea of the defendant, as stated by the Judge the only one with which we are concernedis" that the offenses with which the accused is charged in the indictment are not the offenses on which the surrender to the United States was grounded, but are other and different crimes from those specified in said warrant of extradition, and that he has been held in custody for the crimes specified in the warrant of extradition, but he has not been tried for either of said offenses," and that for this reason he claims that the "court has no jurisdiction to try the present indictment" until the accused shall have a reasonable time, "after his trial for the crimes specified in the extradition warrant," to return to her Majesty's dominions. The replication filed to this plea, as stated by the Judge, admits some of its allegations and denies others, but insists "that by the laws of Great Britain and the United States, as well as by the practice of both parties to the treaty, no limitation exists as to the number and character of the offenses for which a person extradited may be tried." The rejoinder filed by the defendant is stated to be a repetition of the facts set forth in the plea, "without substantial change." To this rejoinder the Government filed a general demurrer, and thus the cause came before the court on the demurrer.

Such is the statement of the case; and although, in his deliverance, the Judge nowhere explains the indictment on which Lawrence was arraigned, but confines himself mainly to making a response to his plea and rejoinder, one would infer from both the plea and the replication, as well as from the deliverance, that it was the purpose of the Government to try the defendant on all the charges brought against him, whether they were included in the extradition warrant or not. Was this the fact?

Secretary Fish, in his letter of May 22, 1876, replying to the statement of Lord Derby that her Majesty's Government had been "assured of the intention of the United States Government to try Lawrence for other than the extradition crime, for which he was surrendered," says: "Her Majesty's Government has never been thus assured, and for the very good reason that the Government of the United States has never reached any such conclusion, and has neither expressed nor formed any such intention:" Foreign Relations of the United States, 1876, p. 243. This letter expressly reverses the impression one would receive from the proceedings before Judge Benedict in the previous March.

Mr. George Bliss was the District-Attorney of the United States who had the direct charge of this case; and in his letter of November 22, 1877, written in response to a previous one of inquiry as to the facts, he gives a general history of the case from its inception to its final completion. Upon his authority we make the following statement:

1. Several indictments were found against Lawrence, charging him with a number of separate and distinct forgeries, certified copies of some of which accompanied the requisition upon the British Government for his delivery as a fugitive criminal; and afterward, for special reasons, thirteen commissioner's warrants were also sent, charging him with as many different forgeries. 2. The examination of the case in England before Sir Thomas Henry resulted in establishing "in complete detail" the charge of forgery made in one of these warrants, fowhich he was afterward indicted. 3. Sir Thomas Henry certified the charge to the Home office o the British Government, and on the basis thereof Lawrence was delivered up, and by the agent of the United States brought to this country, and, passing into the hands of the marshal, was committed to prison. 4. When all the facts in connection with the proceedings in London became known to the United States Government, "care was taken that Lawrence should not be arraigned upon or asked to plead to any charge, except the indictment for the forgery which was unquestionably proved clear through before Sir Thomas Henry." 5. As a matter of fact, he was never arraigned upon any other charge, although his counsel in their plea and for their own purposes "set up the contrary," 6. Soon after

Judge Benedict rendered the decision reported in 13 Blatchf., supra, Lawrence pleaded guilty to the charge specified in the warrant of extradition, under an arrangement which we give in the following language of the District-Attorney:

"Lawrence, I feel at liberty to say, was allowed to plead guilty to the charge on which he was extradited, under a written agreement to render aid in convicting others and recovering money for the Government, in consideration of which a motion for sentence was postponed to enable him to furnish the aid. But the discretion when he should move for sentence was left wholly in the hands of the DistrictAttorney; and it was further arranged that he (Lawrence) was not to expect a sentence of less than two years additional to the year he had already been in prison. * * * * What influenced the Government beyond what appeared in the agreement with Lawrence I never knew, though I could guess as near as most Yankees. That there was something beyond the mere aid in convicting others and recovering money, there is no doubt."

District-Attorney Woodford, in his letter of November 19th, 1877, says: "The dockets of the Circuit Court show that, on May 25th, 1876, Mr. Lawrence pleaded guilty and gave bail and was released, sentence not being moved." The court did not sentence him because no motion was made to this effect; and the motion was omitted in consequence of the arrangement above described. This arrangement, though directly made by Mr. Bliss, was really planned by "the Cabinet at Washington," two of whose members came to New York and saw Lawrence and his papers. "

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These statements show that the Government never did arraign Lawrence upon any other than the extradition charge, and never declared any such intention, though in the Winslow correspondence, Secretary Fish asserted the right to do so. The deliverance of Judge Benedict seems to be sustaining this right, not as an abstract question, but as a right that was then sought to be exercised. He set aside the plea to the jurisdiction and all subsequent pleadings" in the case, and gave "liberty to the defendant to plead anew to the charges in the indictment contained." Unless otherwise informed, one would suppose that at least some of these "charges" passed beyond the 'circle of the extradition warrant. If they did not, then there was really no issue between the prosecution and the defendant, except the truth of the extradition charge, and no pertinency in the plea of Lawrence to the indictment on which he was arraigned.

Judge Benedict, in his deliverance, considers the several points set up in the plea of the defendant, one of which, as stated by the Judge, was that all extradition proceedings, by their very nature, secure to the person surrendered immunity from prosecution for offenses other than the one upon which the surrender was made." It is in relation to this

question only that we propose to examine this deliverance.

1. Having adverted to the fact that the same question was considered and settled in The United States v. Caldwell, supra, and also referred to the decision in Adriance v. Lagrave, 59 N. Y. R. 110, the Judge proceeded to say: "This ground of defense is, therefore, dismissed with the remark that an offender against the justice of his country can acquire no rights by defrauding that justice. Between him and the justice he has offended no rights accrue to the offender by flight. He remains at all times, and everywhere, liable to be called to answer to the law for his violations thereof, provided he comes within the reach of its arm. "

There certainly is no objection to these general propositions, provided the phrase, "he comes within the reach of its arm," be understood to mean an ordinary coming within the reach of offended justice, or an ordinary arrest, and provided still further, that a prosecution for the offense is not excluded by limitation of time. The law, as a general principle, operates upon criminals whenever and wherever it can find them, and brings its processes of trial and punishment to bear against them. But if this coming "within reach of its arm means that a person accused of crime is brought within the jurisdiction through the interposition of another government that has consented, upon specified terms and proceedings, to arrest him in its own territory, to withdraw from him the right of asylum in that territory, and to deliver him up for a distinctly expressed purpose, as was the fact in the case of Lawrence, and is the fact in every case of extradition, then the question is most materially changed. The rights of another government and the obligations due to that government are involved in the very nature of the transaction. The accused party is in custody because that government has chosen to give the custody, not for an offense committed against its own laws, but against those of another country; and whatever rights are secured to him, as incidental to the terms of the extradition, whether express or implied, must be respected, or the terms themselves will be violated.

The general propositions of Judge Benedict, however true and just in ordinary cases, must therefore be taken with those modifications and limitations which are imposed by an extradition treaty. This is especially the case when the fundamental law, as is the fact in this country, makes the treaty a part of the supreme municipal law, and hence an imperative rule to guide the action of courts. The propositions in application to an extradited person are subject to this qualification. Unless so qualified, they are not true.

2. The Judge further says that "the language of the treaty is calculated to repel the idea" set up by the defendant, "for it declares that the offender

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