have taken, and those interested in maintaining the present state of affairs think the experiment worth a trial.

Since the foregoing was put in type the governor has returned, without his approval, the supplemental nine chapters of the Code. The veto message was lengthy, and discussed at length the objectionable features of this portion of the revision. One of the chief objections of the governor is that the bill was not legally passed, not having been read through on the third reading.

NOTES OF CASES.

HE case of Safe Deposit Co., plaintiff in error,

V.

Tv. Pollock, decided in January last by the Supreme Court of Pennsylvania, is upon a branch of the law of bailment, which bids fair in time to assume considerable importance, namely, that relating to the liability of safe deposit companies. It was an action to recover the amount of certain bonds which were lost from a safe hired by plaintiff below from defendant below, and which was situated in defendant's fire-proof vault. The hiring was subject to these rules and regulations, among others: "Whenever a party rents a safe, and deposits therein at pleasure, contents not being made known to the company, its liability is limited: (1) To the keeping of a constant and adequate guard and watch over and upon the burglar-proof safe. (2) To the prevention of access by any renter to the safe of any other renter. (3) To the protection of safes and contents from any dishonesty on the part of any of the company's employees." Plaintiff had exclusive possession of the key to the safe. He placed in the safe certain government bonds and locked it. At a subsequent time he opened the safe and discovered that the bonds were missing. There was no evidence that the safe had been broken or the lock tampered with, but the safe must have been opened with a key fitted thereto. The court held that there was evidence of negligence on the part of the company sufficient to go to the jury, and a verdict for plaintiff was sustained. The case was distinguished from Finucane v. Small, 1 Esp. 315, where the trunk of the bailor was delivered to the bailee for safe custody, the bailor agreeing at the same time to pay a certain sum per week for room rent for the trunk, but nothing was to be paid on account of the care and custody thereof, and there was no express agreement as to the care to be exercised; also, from that of Farnham v. Camd. & Amb. R. R. Co., 5 P. F. Smith, 53, where it was held that proof merely of loss was not sufficient to put the bailee on his defense. The evidence in the case at bar did not stop with merely showing the loss. It showed that the bonds had

been abstracted by some one entering the vault and opening the safe by means of a key. The presumption of want of ordinary care was thereby created, and the question was fairly left to the jury. See, however, Harris v. Packwood, 3 Taunt. 267; McKenzie v. Cox, 9 Car. & P. 632; Cass v. Bost. & Lowell R. R. Co., 14 Allen, 488; Barron v. Eldredge, 100 Mass. 460.

In Gramlich v. Wurst, decided by the same court, on the same day, it is held that a person falling into an excavation in a lot not on the line of a public street, but some distance therefrom, is a trespasser and cannot recover in an action for negligence against the contractor doing the work. The conclusion of the court is in accordance with the nu

merous authorities. In Blyth v. Topham, Cro. Jac. 158, it is held that an action does not lie if a man makes a ditch in his waste which lies near the highway into which the horse of another falls, "for the ditch in his own soil was no wrong to the other, but it was his fault that his horse escaped into the waste." In Kohn v. Lovett, 44 Ga. 251, the owner of a storehouse and lot left at the rear of the storehouse an excavation walled up to give light to the cellar, and plaintiff, on an alarm of fire occurring in an adjoining building, went through the store

house and out the back door and turned into the

excavation, injuring himself, and it was held that the owner of the storehouse was not liable for plaintiff's injury, and the occurrence of the fire did not In Hardcastle v. So. Yorkshire change the rule. Railway Co., 4 Hurl. & N. 67, it is said that when an excavation is made adjoining to a public way, so that a person walking in it might, by making a false step, or being affected with sudden giddiness, fall into it, it is reasonable that the person making such excavation should be liable for the consequences. "But when an excavation is made at some distance from the way and the person falling into it would be a trespasser upon the defendant's land before he reached it," the case would be different. And in Knight v. Albert, 6 Barr, 472, it is decided that though no action lies in Pennsylvania for trespass by cattle pasturing on uninclosed woodlands, yet that not being a matter of right the owner of the land is not liable for injuries happening to the cattle falling into a hole dug by him within the boundaries of the land, and left uninclosed. See, also, as illustrating and enforcing the same doctrine, Phila. & Read. R. R. Co. v. Hummel, 8 Wr. 378; Gilles v. Pennsylvania R. R. Co., 9 P. F. Smith, 129. See, also, Morgan v. City of Hallowell, 57 Me. 277; Hounsell v. Smith, 1 C. B. (N. S.) 731. See, however, Beck v. Carter, 15 Alb. L. J. 211; Hydraulic Works v. Orr, 2 Norris, 332; Barnes v. Ward, 9 C. B. 392; State v. Moore, 31 Conn. 479; Spofford v. Harlow, 3 Allen, 176.

If at

When, however, an accused person has been delivered up to the United States, the jurisdiction for trial and punishment in the two cases is entirely different. If the offense be against State laws, he is handed over to State authority; and that authority, in its prosecuting and judicial machinery, acts independently of the General Government. liberty entirely to ignore the treaty and the extradition proceedings through which it has acquired jurisdiction over the surrendered person, then it is possible that it may so use that jurisdiction as to lead to serious complications between the United States and the foreign government that made the delivery. For any abuse of the power thus acquired the General Government would be responsible; and, hence, there ought to be a preventive remedy within its reach. That would be an anomalous and might be a very embarrassing and possibly a dangerous condition of things, if, after the Government has

caught the fugitive by demanding and receiving him, and has transferred him to State authority, the latter were permitted to treat as immaterial the treaty stipulations and extradition proceedings which have placed him in its hands.

Such is not the theory of the Constitution in regard to any treaty of the United States, whether for extradition or any other purpose. It makes every treaty a part of the law of the land, alike in its express and implied obligations, and, as such, binding upon the administrative and judicial authorities of the several States; and if Congress has not already legislated sufficiently to give effect to this principle, and prevent any abuse of the extradition remedy by State authority, then it ought to do so.

The trial of extradited persons should be placed under the exclusive control of the United States, or the right of removing such cases from State to Federal courts should be secured, or the writ of habeas corpus, issued by Federal courts, should extend to cases of this character. Section 753 of the Revised Statutes of the United States provides that this writ shall extend to no person in jail, with a series of exceptions, one of which is that the party "is in custody in violation of the Constitution or of a law or a treaty of the United States." This provision would seem to cover the case of a person extradited under a treaty, and yet held in custody by State authority

in violation thereof.

In two instances the question, whether an extradited person can be tried for any other offense, committed prior to his extradition, than the one charged in the proceedings and for which he was surrendered, has been brought under consideration in the State courts of this country. The purpose of this article is to state and examine these cases.

The first case is that of Lagrave, considered in 1874 by the General Term of the Supreme Court of New York for the First District, in Bacharach v. Lagrave, appellant, and Adriance v. Lagrave, appellant, 4 N. Y. Supreme Ct. Rep. 215. Lagrave was extradited from France to the United States under a treaty between the two countries; and immediately upon his arrival in the city of New York, and while he was still in custody, he was arrested in civil actions brought against him, before he had any opportunity of return to France. After his arrest he gave bail, and in this way obtained his discharge. He applied to the General Term "to have the order for his arrest vacated because he had been brought into the United States as a fugitive from justice, under the extradition treaty existing between this country and France." The decision of the court was that by giving bail he had not waived his right to have the order of arrest vacated, and that the order should be vacated on the general ground that "a person extradited is entitled to full liberty to return to his former habitation after the purposes of justice are satisfied as to the particular offense, and an arrest in a private action is inconsistent with that right."

Judge Daniels — Judges Davis and Brady concurring-delivered the opinion of the court; and that the reader may see the theory upon which the decision rested, we submit the following extract from this deliverance:

"It may be properly assumed in the disposition of it [the present application], that he [Lagrave] was a fugitive from justice, residing in the French Republic, and only amenable to the laws of this State by force of the extradition remedy provided for by the treaty. Without the provision made, he could not have been brought here from that country; and that provided that it could be done only in a prescribed and particularly enumerated class of cases. The effect of such a specification, according to well-settled principles of construction, is to exclude the remedy from all but the enumerated cases. As to those not mentioned, the negative is as effectually implied as though it had been expressly declared. For that reason, when the defendant was extradited it was for the purpose of answering the crime mentioned in the proceedings taken against him, and for no other purpose whatsoever. As to all other matters, being beyond the reach of the laws of this State, he was absolutely entitled to his freedom. He was extradited for a single special purpose, that of being tried for the crime for the commission of which he was removed from the protection of the laws of France. Beyond that he was entitled to the protection of those laws so far as his personal liberty would have been secured by them

* * * That power [France] consented, by the provision made, to surrender the person entitled in all other respects to its protection, for trial and punishment on a particularly specified charge, and for no other end or object whatsoever. Without the provision made he could not be extradited at all; and by that it can only be done for a clearly defined object. And it therefore becomes the duty of the power to which the surrender may be made, faithfully to secure its proper observance. After the purposes of justice are satisfied as to the particular offense for which the party may be surrendered, then his right to return again to the protection of the laws he was deprived of for the single object allowed by the treaty, is clear and absolute.

* *

* * And if a detention and trial for another offense would not be proper, it would seem to be clear that an arrest of a person at the private suit of another must be denied by the same principle. It is a consequence arising out of the implication that, as to all but the extraditable offense, the accused shall enjoy the unrestrained liberty of returning to the country from which he was taken by force of the treaty provisions. Any different construction would be entirely unreasonable, and no enlightened nation would be willing to submit to it. It would be an abuse of the power provided for, allowing extradition only for clearly defined and particularly enumerated charges, and by necessary implication limiting it to those charges."

Judge Daniels added the remark that "the principle in the case is an important one, and it necessarily grows out of these treaty stipulations with other countries. They are part of the supreme law of the State, superior to those of its own enactment, by an express provision of the Constitution of the United States. And it is the duty of the courts to maintain its observance. That cannot be done by allowing extradited persons to be arrested and restrained at the suits of private persons, unless they elect to remain in the country after their discharge from the proceedings provided for by the treaty."

The theory of Judge Daniels, as set forth in these extracts, and concurred in by the other two judges, was that extradition simply secures a special jurisdiction over the person surrendered; that when the purposes of this jurisdiction are accomplished, the extradited party is entitled to the unrestrained liberty of return to the country from which he had been removed; and that, this right being secured by a treaty which is a part of "the supreme law of the land," it is the duty of courts to enforce it. This view proceeds upon the assumption that "the person surrendered is to be deemed still legally in the country from which he was extradited," except for the purpose specified in the extradition proceedings. To that extent, but no further, has he lost the protection of his foreign asylum in respect to offenses antedating his extradition. We say antedating his extradition, since his foreign asylum has no relation to any offenses which he may commit subsequently

thereto.

The decision in this case was reviewed by the

Court of Appeals in Adriance, appellant, v. Lagrave, 59 N. Y. Rep. 110. Chief Judge Church stated the opinion of the court, and in conclusion said: "The order of the General Term must be reversed, and that of the Special Term affirmed." This, though setting aside the decision as a legal authority, does not affect the force of the reasons on which it was based. It may be that the logic of the reversed decision is better than that of the Court of Appeals. Such we think to be the fact; and, in support of this view, we submit the following comments upon the deliverance of Chief Judge Church:

1. That part of the opinion which relates to the question of "the legal right to detain the defendant for any purposes, except the prosecution of the particular offense for which he was given up," covers about two and a half pages. The discussion of the subject is, consequently, very far from being exhaustive.

2. The Chief Judge, alluding to the view adopted by the General Term, and sustained by "plausible and forcible arguments," remarks: "I have examined the subject with some care, with a view, if possible, to arrive at the same result, which I regard as eminently just as a principle." Referring also to the act of Congress for the protection, against lawless violence, of persons delivered to the United States, he further says: "That these provisions ought to be extended to protection from other prosecutions or detention, I do not doubt." We have here the opinion of the Court of Appeals, speaking through its Chief Judge, that the "principle" adopted by the court below is "eminently just," and that provision ought to be made by law for carrying

it into effect.

The reason for this opinion surely cannot be that there is any impropriety in putting a person on trial for an offense duly charged against him. The law is constantly doing this in the process of bringing offenders to justice. The justice or propriety of the "principle" does not result from the rights of the extradited party, except as they may be secured to him as incidental to those of the government that, under the stipulations of a treaty, made the delivery. The "principle ” is “ eminently just " to that government; and the reason why it is so must be sought in the fact that it has a basis, either express or implied, in the treaty under which the surrender was made.

If then it be true, as the Chief Judge thinks it is true, that Congress ought to provide for the protection of extradited persons against "other prosecutions or detention," it must also be true that this "principle" is in harmony with, and naturally results from, the extradition treaties, which, so far as the United States are a party thereto, contain all the conditions and obligations in regard to the whole subject of international extradition; and hence, the

Chief Judge, in what he admits, virtually grants that there is some authority for the "principle" in the treaties themselves. It is only in reference to their provisions, and the obligation arising therefrom, that it can be considered "eminently just."

3. The Chief Judge, referring to the English act which provides for the "principle" asserted by the General Term, says: "Congress doubtless has power to pass an act similar to the English act referred to, as the whole subject of extradition is confided to the Federal Government." The power here assumed to exist is not among the powers expressly granted to Congress, and not among those implied, except for the purpose of giving effect to the extradition treaties of the United States. It so happens that the Constitution leaves the question of international extradition to be disposed of by treaty; and all the legislative power that Congress has in regard to it is that of passing laws for the proper execution of extradition treaties. It is not the province of such legislation to change the terms or character of these treaties. The treaties themselves define and limit the sphere of the legislation, unless the intention is to repeal them altogether.

If then Congress can pass an act similar to the English act, and thereby protect surrendered persons against being tried in this country, whether in Federal or State courts, for any but the extradition offense or offenses, it must be because this "principle" exists, either expressly or by implication, in the extradition treaties of the United States. If it

does not so exist, Congress cannot by legislation put it there, since this would be virtually making a treaty, which Congress has no power to do. Moreover, it is exceedingly difficult to see how Congress can limit the jurisdiction of a State court in respect to the trial of an extradited person, simply because he is such, except as it may be legislating for the execution of extradition treaties; and if these treaties contain no provisions, express or implied, protecting such persons against trial for any but the extradition offense, then manifestly Congress has no power to afford such protection, as against State authority, when that authority has acquired jurisdiction over them.

It cannot, upon this supposition, make a law to control the action of a State court.

Here, again, the Chief Judge, in what he affirms in regard to the power of Congress to legislate on the subject, concedes the "principle" which it is one object of his deliverance to deny. What he affirms can be true only on the supposition that the "principle" is provided for by treaty.

vision would be wise and proper, but can it be regarded as in the treaty? I can find no authority warranting such a conclusion." The Chief Judge did not refer to the treaty with France, under which Lagrave was extradited, for the purpose of ascertaining whether it contains such a provision or not. The first article of this treaty reads as follows:

"It is agreed that the high contracting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found within the territories of the other: Provided that this shall be done only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there committed."

It is upon these conditions, and for the purpose here specified, and for no other purpose, that the two governments agree to withdraw the right of asylum in respect to the persons referred to, and deliver them up as fugitive criminals. One of the conditions is, that the crime for which a person is demanded must be within the list of crimes named in the second article of the treaty. Another is, that there must be a formal charge of some one or more of these crimes. A third is, that the charge must be so proved that the laws of the country in which the fugitive is found, would justify his apprehension and commitment for trial if the offense had been there committed, and, of course, that the authorities of that country are to decide in each case upon this question of adequate proof.

It is not possible to preserve, in their integrity, these conditions of the demand and the obligation of delivery, in any case in which the demanding government, having thus acquired jurisdiction over the person, shall put him on trial for any offense, committed prior to his extradition, other than the one which was the subject of the proceedings that under the treaty secured the jurisdiction. If the party is surrendered on the charge and proof of murder, and is then tried for forgery, the surrendering government, even though both should be extradition crimes, has been denied the right of judging whether the forgery was sufficiently proved to justify a delivery, since neither the charge nor the proof of forgery was presented to that government. This right is one of the provisions of the treaty; and yet, in the case supposed, it has been entirely ignored. The theory of the treaty is that there is no right of trial, as against the right of asylum, until the government asked to make the delivery has de cided that the evidence is sufficient to put the party on trial for the crime of which he is accused, and has actually surrendered him for that purpose. To

use the jurisdiction, when gained, for any other purpose, is to violate the treaty itself.

We, hence, answer the questions of the Chief Judge by saying that upon the very face of the treaty with France lies the implication that the jurisdiction, acquired under it, is limited to the purpose for which it was acquired, and that it cannot pass beyond this point without disregarding some one or more of the provisions of the treaty. This limitation is, by necessary implication, "in the treaty." The treaty itself, in its express terms, is the highest authority to show the limitation. That which cannot be done without violating a treaty, is certainly excluded by it.

5. Alluding to the English Extradition Act of 1870, which provides that a fugitive criminal shall not be delivered up unless by the law of the foreign country, or by arrangement, he is protected against being tried for any but the offense specified, until he has had an opportunity of returning to Her Majesty's dominions, and which secures the same immunity to persons surrendered to Great Britain, the Chief Judge remarks: "These provisions would have been unnecessary if there existed any such treaty obligation as is claimed in this case." To this we make two replies.

The first is, that the remark has no pertinency to the question that was before the Court of Appeals. That question arose under an extradition treaty with France; and the matter of inquiry was whether Lagrave, who had been extradited under that treaty, was by it protected against any detention or prosecution, except in respect to the offense for which he was surrendered. We are at a loss to see what the English act of 1870, passed simply with reference to the execution of British extradition treaties, has to do with a treaty between the United States and France.

A second reply is, that the Chief Judge was mistaken as to the design of the English act of 1870. He assumed that it was passed by Parliament to secure to extradited persons a protection which was not, expressly or by implication, in the terms of British treaties. If such protection had been in these treaties, then, as he reasons, "these provisions" of the act would have been " unnecessary;" but because it was not, they were necessary meet the difficulty."

แ

"to

Where did the Chief Judge learn that such was the view of Parliament in passing the act? There is not a word in the act itself to indicate it; and it is not reasonable to suppose that Great Britain, one of the parties to extradition treaties, would undertake to legislate into existence obligations or principles for which there was no basis in the treaties themselves, and thus secure by law, and without the consent of the other party, results which lie beyond the provisions of these treaties. Lord Derby

in the Winslow correspondence, says of the act: It is to be regarded as intended to prevent, for the future, evils that were pointed out by Mr. Hammond and others, as having occurred, and being liable to occur, in private prosecutions to which the attention of the Government had not been called." Foreign Relations of the United States, 1876, p. 228. He expressly insisted that the position taken by the British Government in respect to the trial of extradited persons, and incorporated into the English act of 1870, was involved in the treaty between Great Britain and the United States, and, hence, that the act, so far from seeking to modify or add to the treaty, was simply designed to carry it into effect. He also said that the Government would take the same position, if no such act had been passed. Id., p. 257.

It is to be remembered that the English act operates only in Great Britain, upon its courts and its executive officers. As Lord Derby says, and as Mr. Clarke, in his treatise on Extradition, says, it was intended to be curative of certain evils which had their origin in the execution of extradition treaties, and to which the attention of Parliament had been called by a committee of the House of Commons appointed to investigate the whole subject. The purpose of Parliament was not to change or repeal existing treaties, or supplement them with new and different obligations, but to provide for their execution; and, hence, the act is to be taken as an expression of its judgment as to the nature and requirements of these treaties.

6. The Chief Judge also refers to the rule adopted in France, according to which courts have nothing to do with "the conditions upon which extradition has been granted, except upon a notification from the Minister of Justice." Their business is "to try the facts;" and, when standing before them, the criminal himself can make no plea founded on his extradition, or the treaty under which it was secured. This question is for the government, speaking through its Minister of Justice, and not for the party arraigned on the charge of crime.

The difficulty with this reference is that the rule in France, whatever it may be - a point that we do not here pause to determine is not pertinent when sought to be applied in this country. The Consti tution of the United States makes every treaty a part of "the supreme law of the land," and requires courts to take knowledge of it as such, and apply it in cases to which it is applicable. This is a peculiarity of our political system that does not exist in France. It is, hence, immaterial what is the practice in French courts, since American courts are subject to a fundamental law, of which treaties are a part; and if the extradition treaties of the United States, either expressly or by implication, secure to extradited persons immunity against trial for