Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 id. 558. The third doctrine is adopted in Maryland and some other States. Ellicott v. Nichols, supra; Newman v. McComas, 43 Md. 70; Emmons v. Ocerton, 18 B. Monroe, 643; Walton v. Robinson, 6 Iredell, 341. The second theory appears to be the more case at bar the plaintiff was a passenger on defendant's railway, taking his ticket at one of the metropolitan stations accompanied by his son. On the arrival of the train at the platform the son entered the carriage first, followed by the father. After plaintiff had completely entered the carriage but before he had taken his seat or passed the pass-equitable one and the one most in accordance with enger sitting next the door, a servant of the defendant shut the door without warning. The plaintiff's thumb was in the hinge and received injury, to recover damages for which the action was brought in the Mayor's Court of London. The jury found for the plaintiff, but the Common Pleas Division held that judgment absolute should be entered for defendant on the ground that there was no evidence of negligence to go to the jury. Grove, J., who delivered the leading opinion, said that even without the decision in Jackson v. Metropolitan Rail way Co., he should have reached the same conclusion, and this notwithstanding Fordham v. London & Bright. Railway Co., 18 L. T. Rep. (N. S.) 566, where it was held that when a carriage door had been shut prematurely and without warning, and a passenger's hand sustained injury, there was evidence of negligence to go to the jury. See, also, Bridges v. North London Railway Co., 3 L. T. Rep. (N. S.) 844. In Schindel v. Gates, 46 Md. 604, it is held that the payment, by the principal in a joint and several promissory note, of the interest from year to year will prevent the statute of limitations from attaching to the note in favor of the surety. In the State of Maryland, the rule on this subject, as laid down in Ellicott v. Nichols, 7 Gill, 86, is accepted as the law, which the court says is not to be questioned in the absence of legislation to the contrary. It is not, however, the general rule. There are, in regard to the power of one joint maker of a note to deprive the other of the defense of the statute, three distinct and irreconcilable theories: (1) That there is such a power and it exists indefinitely. (2) That there is no such power. (3) That there is such a power but it ends when the term prescribed by the statute has elapsed. The first theory was at one time adopted in England (Channell v. Ditchburn, 5 M. & W. 494; Goddard v. Ingram, 3 G. & Dav. 46), in Massachusetts (White v. Hale, 3 Pick. 392), in Maine, in New Hampshire, and in New York, but it has been of late years done away with by statute | or by the decisions of the courts. The second theory is the one in favor at the present time in most of the States, and in the Federal courts. Bell v. Morrisson, 1 Pet. 351; Exeter Bank v. Sullivan, 6 N. H. 124; Palmer v. Dodge, 4 Ohio St. 21; Coleman v. Fobes, 22 Penn. St. 156; Levy v. Cadit, 17 S. & R. 126; Searigh v. Craighead, 1 Penn. 135; Bush v. Stowell, 71 Penn. St. 208; Van Keuren v. Parmalee, 2 N. Y. 523; People v. Slite, 39 Barb. 634; the prevailing view in regard to the statute of limitations, which is that it is a beneficial statute and one of repose on which a defendant has a right to rely with the same confidence as on any other statute, and that its force should be extended rather than restricted. Ang. on Lim. 283; Shoemaker v. Benedict, supra; Green v. Johnson, 3 G. & J. 394; Fisher v. Hamden, Paine, 61. In the case of Dongan v. Mutual Benefit L. Ins. Co., 46 Md. 469, a policy of life insurance stipulated that in case of the non-payment of the premium when due, it, with previous payments, should be the purpose of paying the premium, borrowed forfeited to the company. In 1862 the insured, for money of one Webb, the agent of the company. Webb took the note of the insured for the loan, and the insured and his wife, which was stated to be as as security took an assignment of the policy from security for the prompt payment at maturity of the "to note, and if that was not paid the policy was continue for the sole use and benefit of " Webb. The note was not paid at all. Webb paid premiums on the policy in 1863 and 1864, and in 1865 surrendered it. Negotiations were had between the company and the insured, but no tender of premiums was made by the insured to Webb or the company, and neither Webb nor the company informed him of the surrender until after it had taken place. The insured died in 1870. In an action in equity, brought in 1873, against the company, to recover the amount of the policy, less unpaid premiums, and the note due Webb and interest, after an action in trover for the conversion of the policy brought by insured and wife had failed, the court held that the assignment to Webb was a mortgage and the right to redeem existed; that the punctual payment of the premiums being a condition of keeping alive the policy, the claim to redeem and enforce the policy could not be sustained; but as the surrender was without notice, the company could receive only the interest of the mortgage, and hold the policy subject to the right of redemption as the mortgagee held it before surrender, and that the surrender should be considered to be made on the joint account of the insured and Webb according to their respective interests, and a decree requiring the company to account to the plaintiff for the reserve value of the policy at the time of the surrender, less the amount due Webb at that time for moneys advanced on the note and for premiums paid was made. The court also held that in such a case the statute of limitations did not apply. The case is an interesting one as showing that equity will interfere to prevent a sac rifice of the interests of holders of life insuranc policies pledged to secure payments which are no made at maturity, when this can be done wit1 sacrificing the rights of any innocent pa** dent in the following words: "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." The President, according to this language, possesses the treaty power, subject in its exercise to the limitation imposed by the necessary concurrence of the Senate. No treaty, without this concurrence, is on the part of the United States a completed and binding negotiation. The terms in which this power is granted are general, with no express restrictions in the grant as to the matters upon which it may be exercised. On this point Mr. Justice Story, in his Commentaries on the Constitution, sect. 1508, remarks: "The power to make treaties is by the Constitution general; and, of course, it embraces all sorts of treaties, for peace or war, for commerce or territory, for alliance or succors, for indemnity for injuries or payment of debts, for the recognition and enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other." The Supreme Court of the United States, in The United States v. 43 Gallons, etc., 3 Otto, 197, said: "The power to make treaties with the Indian tribes is, as we have seen, co-extensive with that to make treaties with foreign nations. In regard to the latter it is, beyond doubt, ample to cover all the usual subjects of diplomacy." Chief Justice Taney, in Holmes v. Jennison, 14 Pet. 540, spoke thus of the treaty power: "The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced; and consequently it was designed to include all those subjects which, in the ordinary intercourse of nations, had usually been made subjects of negotiation and treaty, and which are consistent with the nature of our institutions and the distribution of powers between the General and the State governments." So, also, in The People v. Gerke, 5 Cal. 381, the following doctrine was stated in regard to the scope of this power: "The power to make treaties is given without restraining it to particular objects in as plenipotentiary a form as it is held by any other sovereign in any other community. This principle results from the form and necessities of the Government as elicited by a general review of the Tederal compact. Before the compact, the States had e power of treaty-making as potentially as any er on earth. It extended to every subject. By they expressly granted it to the Federal Government in general terms, and prohibited it to themselves. The General Government must therefore hold it as fully as the States held it, with the exceptions that necessarily flow from a proper construction of the other powers granted and those prohibited by the Constitution." The treaty power, though thus extended in its scope, is, nevertheless, not absolutely unlimited. Mr. Justice Story, in the section above referred to, observes: "But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be construed to authorize the destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it, and cannot supersede or interfere with any other of its fundamental provisions." In The Cherokee Tobacco Case, 11 Wall. 616, the Supreme Court of the United States said: "A treaty cannot change the Constitution or be held valid if it be in violation of that instru ment." In The People v. Naglee, 1 Cal. 231, it was held that a treaty "cannot supersede a State law which enforces or exercises any power of the State not granted away by the Constitution." In The People v. Washington, 36 Cal. 658, it was said that a treaty is but a part of the law of the land, and what is forbidden by the Constitution can no more be done by a treaty than by an act of Congress." In Pierce v. The State, 13 N. H. 336, it was held that "the political rights of the people of the several States, as such, are not subjects of treaty stipulations." In Marbury v. Madison, 1 Cranch, 137, the Constitution itself was spoken of as the paramount authority in all cases, rendering acts of Congress invalid when inconsistent therewith; and the same principle undoubtedly holds equally good in reference to treaties. Treaties, made since the adoption of the Constitution, are made in the exercise of power derived from it; and if in any of their provisions they contradict that instrument, then they must necessarily be so far unconstitutional and void. A treaty cannot directly appropriate money belonging to the United States, since this power is given exclusively to Congress. Turner v. The Baptist Missionary Union, 5 McLean, 344. Assuming then, for the present, that extradition treaties are not forbidden by the Constitution, the question whether they come within the scope of the treaty power, as bestowed by that instrument, resolves itself into the inquiry whether extradition is one of the usual subjects of negotiation between nations. There can be but one answer to this question, and that must be in the affirmative. Mr. Clarke, in his treatise on Extradition, sec. ed., chap. 2, refers to various early treaties between different countries, having for their object the mutual surrender of fugitive criminals. The writers on public law, though not entirely agreed as to the extent of the right to demand a fugitive criminal, and the obligation to deliver him up, independently of a treaty, have, nevertheless, discussed the principles involved in the process, and some of them laid down rules by which it should be governed. Extradition, both before and since the adoption of the Constitution, either with or without treaties, is one of the historic facts of usage and practice among European nations; and this shows that it is within the scope of the treaty power, as given to the President, unless some other provision of the Constitution excludes it therefrom. The courts of this country have had repeated occasion to consider and decide judicial questions arising under extradition treaties and the laws of Congress enacted for their execution; and in no instance have they held either the treaties or the laws to be unconstitutional. The States composing the Union have, under the Constitution, no treaty power; and hence, as was said in Holmes v. Jennison, 14 Pet. 540, and decided in The People v. Curtis, 50 N. Y. 321, they have no authority to enact or execute laws for the delivery of fugitive criminals to foreign countries. This power belongs exclusively to the General Government, and is to be exercised through extradition treaties. In Holmes v. Jennison, supra, Chief Justice Taney remarked: "And without attempting to define the exact limits of this treaty-making power, or to enumerate the subjects intended to be included in it, it may be safely assumed that the recognition and enforcement of the principles of public law, being one of the ordinary subjects of treaties, were necessarily included in the power conferred on the General Government. And as the rights and duties of nations toward one another, in relation to fugitives from justice, are a part of the law of nations, and have always been treated as such by the writers upon public law, it follows that the treaty-making power must have authority to decide how far the right of a foreign nation, in this respect, will be recognized and enforced when it demands the surrender of any one charged with offenses against it." Judge Blatchford, in re Angelo De Giacomo, 12 Blatchf. C. C. R. 391, said: "It is not to be questioned that a treaty stipulation, on the part of the Government of the United States, to surrender fugitives from justice, is a lawful stipulation, and within the authority of the treaty-making power." Mr. Justice Nelson, in re Kaine, 14 How. 103, expressed the opinion that the courts of this country "possess no power to arrest, and surrender to a foreign country, fugitives from justice, except as authorized by treaty stipulations and acts of Congress passed in pursuance thereof." This implies that such stipulations are a constitutional exercise of the treaty power. Every nation, possessing the ordinary attributes of sovereignty, and acting through an established government, must have the power, unless there be some self-imposed restriction upon it in its local constitution, to stipulate for the delivery of fugitive criminals as between itself and other nations. No nation is bound against its own will, or bound by the law of nations, to make its territory a secure asylum for such criminals, or try and punish them for offenses not committed against its own laws or within its own jurisdiction. Whether a nation shall surrender them that they may be dealt with by the government whose laws they have violated, is a question for its own discretion. This discretion, in respect to the United States, the Constitution lodges with the President in the general grant of the treaty power; and unless there be something in the instrument which excludes extradition therefrom, then it necessarily follows that the President, with the advice and consent of the Senate, has ample power to make treaties for this purpose. This, then, brings us to the question whether the Constitution contains any provisions which exclude extradition from the treaty power. Mr. William B. Lawrence, in a letter published in the ALBANY LAW JOURNAL, vol. 16, p. 405, proposed a series of inquiries for legislative investigation, one of which reads as follows: "Whether extradition, in whatever mode granted, either by treaty or by the executive or other department of the Federal Government, is not a violation of the Constitution of the United States, which was intended to protect, certainly in all cases of Federal cognizance, all persons within our jurisdiction from being held to answer for a capital or otherwise infamous crime without the presentment or indictment of a grand jury, or deprived of life, liberty or property without due process of law, and professes to secure in all criminal prosecutions speedy and public trial by an impartial jury." The reference, made in this query, is to the fifth and sixth amendments to the Constitution. In regard to these amendments, and also all restrictions of power found in the Constitution and expressed in general terms, the Supreme Court of the United States has adopted the doctrine that they are applicable only to the Government created by that instrument. They consequently have no application to the State governments, and certainly none to the governments of other countries. See Barron v. The Mayor of Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, id. 469; Fox v. The State of Ohio, 5 How. 410; Smith v. The State of Maryland, 18 id. 71; Pervear v. The Commonwealth, 5 Wall. 475; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 535; and Sedgwick's Construction of Statutory and Constitutional Law, sec. ed., 555. If the rights, secured by the limitations imposed on the power of the General Government are not invaded by extradition treaties, then it fo lows that the limitations have no relation to su treaties. What then is the fact? P. In the case of Jonathan Robbins, which, under the extradition article of the treaty of 1794 between the United States and Great Britain, came before Judge Bee, of the United States District Court for South Carolina, it was urged "that the Constitution secured the right of trial by jury to the citizens [of the United States], and that treaties and laws altering that were of subordinate authority, and, of course, void." To this the Judge replied as follows: "If we attend to the Constitution, and the amendments which are now a part of it, we shall find that all the provisions there made respecting criminal prosecutions and trials for crimes by a jury, are expressly limited to crimes committed within a State or district of the United States. Indeed, reason and common sense point out that it should be so, for what control can the laws of one nation have over offenses committed in the territories of another? It must be remembered also, that in the article of amendments, where it is provided that no person shall be held to answer for a capital offense, unless on a presentment by a grand jury, an exception is made to cases arising in the land or sea service, or even in the militia when in actual service in time of war or public danger. This shows unequivocally that trials by jury may be dispensed with, even for crimes committed within the United States; and these observations are at once an answer to all the arguments founded on the right of trials by jury, they being expressly limited to crimes committed within the United States, and even then with some exceptions." Wharton's State Trials, pp. 401, 402. Those provisions of the Constitution, whether in the body of the instrument, or in the amendments thereto, which require that trials in criminal cases shall be by jury and on the presentment of a grand jury, refer to offenses committed against the United States, and have no relation to such as may be committed against other governments. Extradition is not a trial at all, but simply a preliminary arrest, examination, and delivery of a fugitive criminal, with a view to his trial in the country whose laws he has offended; and, hence, Judge Bee was clearly right in holding that the constitutional provisions respecting jury trials in criminal cases have no application whatever to the proceeding. It was also urged in behalf of Robbins, that he was "a citizen of the United States and a native of Connecticut," and "that the treaty can only relate to foreigners." To this the Judge replied that it does not "make any difference whether the offense was committed by a citizen or another person." No reason was given for this opinion; yet the treaty itself, as to the right of demand and the obligation of delivery, made no distinction between citizens and foreigners. Some of the extradition treaties of the United States expressly provide that neither -hall be required to deliver up its own citizens and, of course, under these treaties, there is no obligation of such delivery. Other treaties, however, make no such provision; and under them there is no distinction between citizens and foreigners, so far as the United States are concerned, unless the Constitution exempts the former from the operation of extradition treaties. We know of no constitutional provision, express or implied, that secures any such exemption to the citizen of the United States. If he goes into a foreign country, he becomes for the time being subject to its municipal laws; and if he violates those laws, then, unless unjustly oppressed contrary to the law of nations, he is not under the protection of the United States, as against trial and punishment therefor by the local authority. The United States Government, except as specially provided for by treaty, would have no jurisdiction to try or punish him; and his rights of citizenship would afford him no immunity for crime committed in a foreign country. If he should return to the United States as a fugitive from justice, and if by the terms of a treaty his crime were an extradition offense, and still further, if the treaty did not exempt the citizens or subjects of the respective parties from being delivered up for such offenses, then there is nothing in the mere fact of his citizenship to give him such exemption, any more than there is in such citizenship to secure exemption from trial and punishment in the foreign country whose laws he has violated. His extradition would not be a trial under those laws, but simply an arrest, a detention and a delivery, that he might be tried where the offense was committed, and where the jurisdiction for this purpose exists; and unless the treaty protects him against such extradition on the ground of citizenship, then he would have no protection, any more than if he were a foreigner. So Judge Bee held in regard to Robbins, even if his citizenship were conceded as a fact. The treaty of 1794 did not exempt him on this ground; and there is nothing in the Constitution to make such a treaty void in its application to citizens of the United States, when demanded as fugitive criminals in accordance with its provisions. In the case of Christiana Cochrane, 4 Op. Att.Gen. 201, who, in 1843, was arrested and held for delivery as a fugitive criminal under the tenth article of the treaty of 1842 between the United States and Great Britain, the ground was taken in her petition and remonstrance addressed to the President, and in the argument of her counsel, that this "article of the treaty is itself void, as being repugnant to the Constitution of the United States." The clauses upon which this claim was based, are the fourth and fifth articles of the amendments to the Constitution. The fourth of these articles declares that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable ation in an extradition treaty and of the proceed foreign government, and over it the United States have no jurisdiction for trial and punishment. The whole object of the arrest, the initiatory examination, and the final delivery is to give the government, whose laws have been violated, possession of the fugitive criminal, with a view to his trial by the proper authority; and there is nothing in the amendment to preclude this object or the method of attaining it. searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, sup-ings under it, since the offense is one against a ported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." To the argument resting on this clause Attorney-General Nelson thus replied: "Now I do not understand the provisions of the tenth article of the treaty of 1842 as being | at all in conflict with this article of the Constitution, or that, in fulfilling it, as has been done in this case, the right of personal security of the accused has been assailed. The protection guaranteed is not against all seizures; it is against unreasonable seizures; it [the seizure] can be made only upon probable cause; and, when authorized, the evidence of its reasonableness is to be furnished by oath or affirmation — all of which prerequisites have been complied with in this case." This constitutional clause surely protects no one against arrest by the warrant of a magistrate, upon probable cause supported by oath or affirmation, or against an examination and commitment to prison if the evidence be sufficient to justify detention; and this is precisely what is done in giving effect to an extradition treaty. The party accused is arrested and examined upon complaint made under oath, and, upon proper evidence of guilt, delivered to the foreign government demanding him in pursuance of a treaty. There is nothing in this procedure repugnant to the fourth amendment to the Constitution. The phrase "due process of law," as occurring in this amendment, applies, so far as it has relation to criminal offenses, only to those committed against the United States; and in respect to them it does not forbid the arrest and examination of a person, upon complaint made under oath, or his detention, by the commitment of a magistrate, until his case can be considered by a grand jury. It surely does not forbid the President to make a treaty providing for the arrest and examination of fugitive criminals and their commitment to prison upon adequate evidence, or Congress to enact a law for carrying such a treaty into effect, or the surrender of such criminals that they may answer in the courts of the country whose laws they have offended. The phrase has no relation to the questions that arise and are considered in proceedings for the purpose of extradition under a treaty, or to the powers of the President in making such a treaty. In the case of Angelo De Giacomo, 12 Blatchf. C. C. R. 391, the question was presented to the com The other constitutional clause, referred to, provides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on pre-missioner, who was conducting the examination, whether the accused could be arrested, held, and delivered up, for an offense within the enumeration of the treaty between the United States and the King of Italy, but committed before the date of the treaty. Judge Blatchford, before whom the case was brought upon habeas corpus and certiorari, decided that the treaty applied to past as well as future crimes, and hence, that, although the offense in this case preceded the treaty, it was not for this reason excluded from its operation. As to "the restriction, in article four of the amendments to the Constitution, against violating the right of the peo sentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger," and further provides that no person shall "be deprived of life, liberty or property without due process of law." To the argument based on this provision the Attorney-General answered: "Nor do I perceive how it can be supposed that there has been any infraction, by the treaty stipulations, of the fifth article of the constitutional amendments, which, in declaring that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indict-ple to be secure against unreasonable seizures, and ment by a grand jury, was never designed to embrace any other than offenses against the United States. The offense charged by this proceeding is one against the Government of Great Britain, over which the courts of the United States can rightfully exercise no jurisdiction, and for which, in these courts, the accused cannot be required to answer upon or without a presentment or indictment by a grand jury." This proceeds upon the assumption that the language of the fifth amendment has no application to the offense which is the subject-matter of consider the restriction, in article five of such amendments, against depriving a person of liberty without due process of law," the Judge said: They have no relation to the subject of extradition for crime, as regulated by the treaty in question and the statutes of the United States passed on that subject." Holding an extradition treaty, made by the President of the United States, to be "a lawful stipulation, and within the authority of the treaty-making power," he dismissed these amendments without any discus sion, on the ground that they have no relation t the subject. |