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have taken, and those interested in maintaining the been abstracted by some one entering the vault and present state of affairs think the experiment worth opening the safe by means of a key. The presumpa trial.
tion of want of ordinary care was thereby created, Since the foregoing was put in type the and the question was fairly left to the jury. See, governor has returned, without his approval, the however, Harris v. Packwood, 3 Taunt. 267; McKensupplemental nine chapters of the Code. The veto zie v. Cox, 9 Car. & P. 632; Cas8 v. Bost. & Lowell message was lengthy, and discussed at length the R. R. Co., 14 Allen, 488; Barron v. Eldredge, 100 objectionable features of this portion of the re- Mass. 460. vision. 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.
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 NOTES OF CASES.
against the contractor doing the work. The conHE case of Safe Deposit Co., plaintiff in error,
clusion of the court is in accordance with the nuv. Pollock, decided in January last by the Supreme
merous authorities. In Blyth v. Topham, Cro. Jac. Court of Pennsylvania, is upon a branch of the law 158, it is held that an action does not lie if a man of bailment, which bids fair in time to assume con
makes a ditch in his waste which lies near the highsiderable importance, namely, that relating to the way into which the horse of another falls, “ for the liability of safe deposit companies. It was an ac
ditch in his own soil was no wrong to the other, tion to recover the amount of certain bonds which but it was his fault that his horse escaped into the were lost from a safe hired by plaintiff below from waste.” In Kohn v. Lovett, 44 Ga. 251, the owner defendant below, and which was situated in de- of a storehouse and lot left at the rear of the storefendant's fire-proof vault. The hiring was subject house an excavation walled up to give light to the to these rules and regulations, among others: cellar, and plaintiff, on an alarm of fire occurring “Whenever a party rents a safe, and deposits there in an adjoining building, went through the storein at pleasure, contents not being made known to house and out the back door and turned into the the company, its liability is limited: (1) To the excavation, injuring himself, and it was held that keeping of a constant and adequate guard and
the owner of the storehouse was not liable for plainwatch over and upon the burglar-proof safe. (2) | tiff's injury, and the occurrence of the fire did not To the prevention of access by any renter to the change the rule. In Hardcastle v. So, Yorkshire safe of any other renter. (3) To the protection of Railway Co., 4 Hurl. & N. 67, it is said that when safes and contents from any dishonesty on the part
an excavation is made adjoining to a public way, of any of the company's employees.” Plaintiff had so that a person walking in it might, by making a exclusive possession of the key to the safe. He false step, or being affected with sudden giddiness, placed in the safe certain government bonds and fall into it, it is reasonable that the person making locked it. At a subsequent time he opened the such excavation should be liable for the consequensafe and discovered that the bonds were missing
" But when an excavation is made at some There was no evidence that the safe had been distance from the way and the person falling into broken or the lock tampered with, but the safe it would be a trespasser upon the defendant's land must have been opened with a key fitted thereto. before he reached it,” the case would be different. The court held that there was evidence of negli-And in Knight v. Albert, 6 Barr, 472, it is decided gence on the part of the company sufficient to go to that though no action lies in Pennsylvania for tresthe jury, and a verdict for plaintiff was sustained. pass by cattle pasturing on uninclosed woodlands, yet The case was distinguished from Finucane v. Small, that not being a matter of right the owner of the 1 Esp. 315, where the trunk of the bailor was de- land is not liable for injuries happening to the catlivered to the bailee for safe custody, the bailor tle falling into a hole dug by him within the bounagreeing at the same time to pay a certain sum per daries of the land, and left uninclosed. See, also, as week for room rent for the trunk, but nothing was illustrating and enforcing the same doctrine, Phila. to be paid on account of the care and custody there & Read. R. R. Co. v. Hummel, 8 Wr. 378; Gilles v. of, and there was no express agreement as to the Pennsylvania R. R. Co., 9 P. F. Smith, 129. See, care to be exercised; also, from that of Farnham v. also, Morgan v. City of Hallowell, 57 Me. 277; HounCamd. & Amb. R. R. Co., 5 P. F. Smith, 53, where sell v. Smith, 1 C. B. (N. S.) 731. See, however, it was held that proof merely of loss was not suf- Beck v. Carter, 15 Alb. L. J. 211; Hydraulic Works ficient to put the bailee on his defense. The evi- v. Orr, 2 Norris, 332; Barnes v. Ward, 9 C. B. 392; dence in the case at bar did not stop with merely state v. Moore, 31 Conn. 479; Spofford v. Harlow, 3 showing the loss. It showed that the bonds had | Allen, 176.
In two instances the question, whether an extraTHE CASES OF LAGRAVE AND HAWES.
dited person can be tried for any other offense, comBY SAMUEL T. SPEAR, D. D.
mitted prior to his extradition, than the one charged MHE extradition treaties of the United States, in
in the proceedings and for which he was surrendered, specifying the crimes for which extradition
has been brought under consideration in the State may be had, make no distinction between offenses
courts of this country. The purpose of this article
is to state and examine these cases. against Federal law and those against State law. The action of the Government in procuring the sur
The first case is that of Lagrave, considered in render of an alleged fugitive is precisely the same
1874 by the General Term of the Supreme Court of in both cases.
New York for the First District, in Bacharach v. LaWhen, however, an accused person has been de
grare, appellant, and Adriance v. Lagrave, appellant, livered up to the United States, the jurisdiction for
4 N. Y. Supreme Ct. Rep. 215. Lagrave was ex
tradited from France to the United States under a trial and punishment in the two cases is entirely different. If the offense be against State laws, he
treaty between the two countries; and immediately is handed over to State authority; and that author
upon his arrival in the city of New York, and while ity, in its prosecuting and judicial machinery, acts
he was still in custody, he was arrested in civil independently of the General Government. If at
actions brought against him, before he had any liberty entirely to ignore the treaty and the extra- opportunity of return to France. After his arrest dition proceedings through which it has acquired
he gave bail, and in this way obtained his discharge. jurisdiction over the surrendered person, then it is
He applied to the General Term “ to have the order
for his arrest vacated because he had been brought possible that it may so use that jurisdiction as to lead to serious complications between the United
into the United States as a fugitive from justice, States and the foreign government that made the
under the extradition treaty existing between this delivery. For any abuse of the power thus acquired
country and France.” The decision of the court the General Government would be responsible; and,
was that by giving bail he had not waived his right hence, there ought to be a preventive remedy within
to have the order of arrest vacated, and that the its reach. That would be an anomalous and might
order should be vacated on the general ground that be a very embarrassing and possibly a dangerous
" a person extradited is entitled to full liberty to recondition of things, if, after the Government has
turn to his former habitation after the purposes of caught the fugitive by demanding and receiving justice are satisfied as to the particular offense, and him, and has transferred him to State authority, the
an arrest in a private action is inconsistent with that latter were permitted to treat as immaterial the
right.” treaty stipulations and extradition proceedings
Judge Daniels Judges Davis and Brady concurwhich have placed him in its hands.
ring -- delivered the opinion of the court; and that Such is not the theory of the Constitution in re
the reader may see the theory upon which the degard to any treaty of the United States, whether for
cision rested, we submit the following extract from
this deliverance: extradition or any other purpose. It makes every treaty a part of the law of the land, alike in its ex- "It may be properly assumed in the disposition press and implied obligations, and, as such, binding of it (the present application), that he [Lagrave]
was a fugitive from justice, residing in the French upon the administrative and judicial authorities of
Republic, and only amenable to the laws of this the several States; and if Congress has not already State by force of the extradition remedy provided legislated sufficiently to give effect to this principle, for by the treaty. Without the provision made, he and prevent any abuse of the extradition remedy by
could not have been brought here from that country;
and that provided that it could be done only in a State authority, then it ought to do so.
prescribed and particularly enumerated class of The trial of extradited persons should be placed
The effect of such a specification, according under the exclusive control of the United States, or to well-settled principles of construction, is to exthe right of removing such cases from State to Federal
clude the remedy from all but the enumerated cases. courts should be secured, or the writ of habeas
As to those not mentioned, the negative is as effectcorpus,
ually implied as though it had been expressly deissued by Federal courts, should extend to cases of clared. For that reason, when the defendant was this character. Section 753 of the Revised Statutes extradited it was for the purpose of answering the of the United States provides that this writ shall
crime mentioned in the proceedings taken against extend to no person in jail, with a series of excep
him, and for no other purpose whatsoever. As to
all other matters, being beyond the reach of the tions, one of which is that the party “is in custody laws of this State, he was absolutely entitled to his in violation of the Constitution or of a law or a freedom. He was extradited for a single special treaty of the United States.” This provision would purpose, that of being tried for the crime for the seem to cover the case of a person extradited under
commission of wbich he was removed from the pro
tection of the laws of France. Beyond that he was a treaty, and yet held in custody by State authority
entitled to the protection of those laws so far as his in violation thereof.
personal liberty would have been secured by them
in case no removal of his person had been made. Court of Appeals in Adriance, appellant, v. Lagrave,
That power (France) consented, by the 59 N. Y. Rep. 110. Chief Judge Church stated the provision made, to surrender the person entitled in all other respects to its protection, for trial and pun
opinion of the court, and in conclusion said: ishment on a particularly specified charge, and for
order of the General Term must be reversed, and no other end or object whatsoever. Without the that of the Special Term affirmed.” This, though provision made he could not be extradited at all; setting aside the decision as a legal authority, does and by that it can only be done for a clearly defined
not affect the force of the reasons on which it was object. And it therefore becomes the duty of the power to which the surrender may be made, 'faith
based. It may be that the logic of the reversed fully to secure its proper observance.
decision is better than that of the Court of Appeals. After the purposes of justice are satisfied as to the Such we think to be the fact; and, in support of particular offense for which the party may be sur- this view, we submit the following comments upon rendered, then his right to return again to the pro
the deliverance of Chief Judge Church: tection of the laws he was deprived of for the single object allowed by the treaty, is clear and absolute.
1. That part of the opinion which relates to the And if a detention and trial for an- question of “the legal right to detain the defendant other offense would not be proper, it would seem to for any purposes, except the prosecution of the parbe clear that an arrest of a person at the private suit
ticular offense for which he was given up," covers of another must be denied by the same principle. It is a consequence arising out of the implication that,
about two and a half pages. The discussion of the as to all but the extraditable offense, the accused subject is, consequently, very far from being exshall enjoy the unrestrained liberty of returning to haustive. the country from which he was taken by force of
2. The Chief Judge, alluding to the view adopted the treaty provisions. Any different construction would be entirely unreasonable, and no enlightened by the General Term, and sustained by “ plausible nation would be willing to submit to it. It would and forcible arguments,” remarks: “I have exam be an abuse of the power provided for, allowing ined the subject with some care, with a view, if
posextradition only for clearly defined and particularly sible, to arrive at the same result, which I regard enumerated charges, and by necessary implication limiting it to those charges.”
as eminently just as a principle.” Referring also to Judge Daniels added the remark that “the prin- less violence, of persons delivered to the United
the act of Congress for the protection, against lawciple in the case is an important one, and it necessa
States, he further says: “That these provisions rily grows out of these treaty stipulations with
ought to be extended to protection from other prosother countries. They are part of the supreme
ecutions or detention, I do not doubt.” We have of the State, superior to those of its own enactment,
here the opinion of the Court of Appeals, speaking by an express provision of the Constitution of the
through its Chief Judge, that the "principle” United States. And it is the duty of the courts to adopted by the court below is “eminently just," and maintain its observance. That cannot be done by that provision ought to be made by law for carrying allowing extradited persons to be arrested and re
it into effect. strained at the suits of private persons, unless they
The reason for this opinion surely cannot be that elect to remain in the country after their discharge there is any impropriety in putting a person on trial from the proceedings provided for by the treaty."
for an offense duly charged against him. The law The theory of Judge Daniels, as set forth in these
is constantly doing this in the process of bringing extracts, and concurred in by the other two judges,
offenders to justice. The justice or propriety of the was that extradition simply secures a special juris-“ principle” does not result from the rights of the cliction over the person surrendered; that when the
extradited party, except as they may be secured to purposes of this jurisdiction are accomplished, the
him as incidental to those of the government that, extradited party is entitled to the unrestrained lib
under the stipulations of a treaty, made the deliverty of return to the country from which he had been removed ; and that, this right being secured by ery. The “ principle” is “ eminently just ” to that a treaty which is a part of “the supreme law of the government; and the reason why it is so must be
sought in the fact that it has a basis, either express land," it is the duty of courts to enforce it. This
or implied, in the treaty under which the surrender view proceeds upon the assumption that “the per
was made. son surrendered is to be deemed still legally in the
If then it be true, as the Chief Judge thinks it is country from which he was extradited,” except for the purpose specified in the extradition proceedings. true, that Congress ought to provide for the protecTo that extent, but no further, has he lost the pro
tion of extradited persons against “ other prosecutection of his foreign asylum in respect to offenses
tions or detention," it must also be true that this antedating his extradition. We say antedating his
principle” is in harmony with, and naturally reextradition, since his foreign asylum has no relation
sults from, the extradition treaties, which, so far as to any offenses which he may commit subsequently
the United States are a party thereto, contain all the thereto.
conditions and obligations in regard to the whole The decision in this case was reviewed by the
subject of international extradition; and hence, the
Chief Judge, in what he admits, virtually grants vision would be wise and proper, but can it be rethat there is some authority for the “principle" in garded as in the treaty? I can find no authority the treaties themselves. It is only in reference to warranting such a conclusion." The Chief Judge their provisions, and the obligation arising there- did not refer to the treaty with France, under which from, that it can be considered “eminently just.” Lagrave was extradited, for the purpose of ascer
3. The Chief Judge, referring to the English act taining whether it contains such a provision or not. which provides for the “principle" asserted by the The first article of this treaty reads as follows: General Term, says: Congress doubtless has power
“It is agreed that the high contracting parties to pass an act similar to the English act referred to,
shall, on requisitions made in their name, through as the whole subject of extradition is confided to the the medium of their respective diplomatic agents, Federal Government." The power here assumed to deliver up to justice persons who, being accused of exist is not among the powers expressly granted to
the crimes enumerated in the next following article,
committed within the jurisdiction of the requiring Congress, and not among those implied, except for
party, shall seek an asylum, or shall be found withthe purpose of giving effect to the extradition
in the territories of the other: Provided that this treaties of the United States. It so happens that shall be done only when the fact of the commission the Constitution leaves the question of international
of the crime shall be so established as that the laws extradition to be disposed of by treaty; and all the of the country in which the fugitive or the person
so accused shall be found, would justify his or her legislative power that Congress has in regard to it is
apprehension and commitment for trial, if the crime that of passing laws for the proper execution of ex- had been there committed." tradition treaties. It is not the province of such
It is upon these conditions, and for the purpose legislation to change the terms or character of these
here specified, and for no other purpose, that the treaties. The treaties themselves define and limit
two governments agree to withdraw the right of the sphere of the legislation, unless the intention is
asylum in respect to the persons referred to, and to repeal them altogether.
deliver them up as fugitive criminals. One of the If then Congress can pass an act similar to the
conditions is, that the crime for which a person is English act, and thereby protect surrendered per
demanded must be within the list of crimes named sons against being tried in this country, whether in
in the second article of the treaty. Another is, that Federal or State courts, for any but the extradition offense or offenses, it must be because this "princi- of these crimes. A third is, that the charge must
there must be a formal charge of some one or more ple” exists, either expressly or by implication, in
be so proved that the laws of the country in which the extradition treaties of the United States. If it does not so exist, Congress cannot by legislation putsion and commitment for trial if the offense had
the fugitive is found, would justify his apprehenit there, since this would be virtually making a
been there committed, and, of course, that the autreaty, which Congress has no power to do. More
thorities of that country are to decide in each case over, it is exceedingly difficult to see how Congress
upon this question of adequate proof. can limit the jurisdiction of a State court in respect
It is not possible to preserve, in their integrity, to the trial of an extradited person, simply because
these conditions of the demand and the obligation he is such, except as it may be legislating for the
of delivery, in any case in which the demanding execution of extradition treaties; and if these treaties
government, having thus acquired jurisdiction over contain no provisions, express or implied, protecting the person, shall put him on trial for any offense, such persons against trial for any but the extradi
committed prior to his extradition, other than the tion offense, then manifestly Congress has no power
one which was the subject of the proceedings that to afford such protection, as against State authority, under the treaty secured the jurisdiction. If the when that authority has acquired jurisdiction over
party is surrendered on the charge and proof of them. It cannot, upon this supposition, make a
murder, and is then tried for forgery, the surrenderlaw to control the action of a State court.
ing government, even though both should be extraHere, again, the Chief Judge, in what he affirms dition crimes, has been denied the right of judging in regard to the power of Congress to legislate on
whether the forgery was sufficiently proved to the subject, concedes the “principle” which it is justify a delivery, since neither the charge nor the one object of his deliverance to deny. What he proof of forgery was presented to that government, affirms can be true only on the supposition that the This right is one of the provisions of the treaty; and “principle” is provided for by treaty.
yet, in the case supposed, it has been entirely ig4. The Chief Judge also says: Any thing neces- nored. The theory of the treaty is that there is no sarily implied [in treaties] is as though inserted; but right of trial, as against the right of asylum, until can it be said that there is such an implication of the government asked to make the delivery has de agreement, on the part of the United States, that' cided that the evidence is sufficient to put the party the prisoner shall not be detained for any other law- on trial for the crime of which he is accused, and ful purpose ? It may be conceded that such a pro- has actually surrendered him for that purpose. To use the jurisdiction, when gained, for any other in the Winslow correspondence, says of the act: purpose, is to violate the treaty itself.
“ It is to be regarded as intended to prevent, for We, hence, answer the questions of the Chief the future, evils that were pointed out by Mr. HamJudge by saying that upon the very face of the mond and others, as having occurred, and being treaty with France lies the implication that the liable to occur, in private prosecutions to which the jurisdiction, acquired under it, is limited to the pur-attention of the Government had not been called.” pose for which it was acquired, and that it cannot Foreign Relations of the United States, 1876, p. pass beyond this point without disregarding some 228. He expressly insisted that the position taken one or more of the provisions of the treaty. This by the British Government in respect to the trial of limitation is, by necessary implication, “in the extradited persons, and incorporated into the Entreaty.” The treaty itself, in its express terms, is glish act of 1870, was involved in the treaty between the highest authority to show the limitation. That Great Britain and the United States, and, hence, which cannot be done without violating a treaty, is that the act, so far from seeking to modify or add certainly excluded by it.
to the treaty, was simply designed to carry it into 5. Alluding to the English Extradition Act of effect. He also said that the Government would 1870, which provides that a fugitive criminal shall take the same position, if no such act had been not þe delivered up unless by the law of the foreign passed. Id., p. 257. country, or by arrangement, he is protected against It is to be remembered that the English act operbeing tried for any but the offense specified, until ates only in Great Britain, upon its courts and its he has had an opportunity of returning to Her executive officers. As Lord Derby says, and as Mr. Majesty's dominions, and which secures the same Clarke, in his treatise on Extradition, says, it was immunity to persons surrendered to Great Britain, intended to be curative of certain evils which had the Chief Judge remarks: “ These provisions would their origin in the execution of extradition treaties, have been unnecessary if there existed any such and to which the attention of Parliament had been treaty obligation as is claimed in this case.” To called by a committee of the House of Commons this we make two replies.
appointed to investigate the whole subject. The The first is, that the remark has no pertinency to purpose of Parliament was not to change or repeal the question that was before the Court of Appeals. existing treaties, or supplement them with new and That question arose under an extradition treaty with different obligations, but to provide for their execuFrance; and the matter of inquiry was whether La- tion; and, hence, the act is to be taken as an grave, who had been extradited under that treaty, expression of its judgment as to the nature and rewas by it protected against any detention or prose- quirements of these treaties. cution, except in respect to the offense for which he 6. The Chief Judge also refers to the rule adopted was surrendered. We are at a loss to see what the in France, according to which courts have nothing English act of 1870, passed simply with reference to to do with "the conditions upon which extradition the execution of British extradition treaties, has to has been granted, except upon a notification from do with a treaty between the United States and the Minister of Justice.” Their business is "to try France.
the facts;” and, when standing before them, the A second reply is, that the Chief Judge was mis- criminal himself can make no plea founded on his taken as to the design of the English act of 1870. extradition, or the treaty under which it was secured. He assumed that it was passed by Parliament to This question is for the government, speaking secure to extradited persons a protection which was through its Minister of Justice, and not for the not, expressly or by implication, in the terms of party arraigned on the charge of crime. British treaties. If such protection had been in The difficulty with this reference is that the rule these treaties, then, as he reasons, “these provis- in France, whatever it may be a point that we do ions” of the act would have been unnecessary;" not here pause to determine – is not pertinent when but because it was not, they were necessary “to sought to be applied in this country. The Consti meet the difficulty.”
tution of the United States makes every treaty a Where did the Chief Judge learn that such was part of “the supreme law of the land,” and requires the view of Parliament in passing the act ? There courts to take knowledge of it as such, and apply it is not a word in the act itself to indicate it; and it in cases to which it is applicable. This is a pecuis not reasonable to suppose that Great Britain, one liarity of our polit:cal system that does not exist in of the parties to extradition treaties, would under- France. It is, hence, immaterial what is the take to legislate into existence obligations or princi- practice in French courts, since American courts are ples for which there was no basis in the treaties subject to a fundamental law, of which treaties are themselves, and thus secure by law, and without a part; and if the extradition treaties of the United the consent of the other party, results which lie be- States, either expressly or by implication, secure to yond the provisions of these treaties. Lord Derby
extradited persons immunity against trial for