The question was raised in this case, whether the constitutional provision that "no bill of attainder or ex post facto law shall be passed," is not violated by the treaty as thus interpreted. To the first branch of this question the Judge replied: "A bill of attainder is defined to be 'a legislative act which inflicts punishment without a judicial trial,' where the legislative body exercises the office of judge, and assumes judicial magistracy, and pronounces on the guilt of a party without any of the forms and safeguards of a trial. Cummings v. Missouri, 4 Wall. 323. This treaty does none of these things, nor do any of the statutes for carrying the treaty into effect contain provisions which fall within such definition."

As to the second part of the question the Judge remarked: "By an ex post facto law is meant one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed, or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required." Cummings v. Missouri, 4 Wall. 326, and Calder v. Bull, 3 Dall. 390. The Judge held that the treaty, as construed by him, was not an er post facto law, within the proper meaning of this phrase. On this point he observed: "The fact of extradition cannot be properly regarded as punishment, within the sense of that word, as used when considering the subject of ex post facto laws. There is no offense against the United States, and no trial for any such offense, and no punishment for any such offense. It is true that extradition relates only to criminal offenses, but it relates only to criminal offenses committed abroad; and no treaty for extradition, nor any statute passed in relation to extradition, purports to punish the fugitive for the offense. Both treaties and statutes assume that he is to be tried upon the charge, if not already convicted. With the question of punishment, or the kind or degree, they have no concern. They merely declare that the protection of this government shall not be interposed between the fugitive and the laws which he has violated, and that, if he flees hither for such protection, the injured Government may take him hence, and shall be aided therein. This Government neither assumes nor exercises any power for the punishment of crime." It follows, from the very nature of an ex post facto law, that the constitutional provision in regard to such laws can have no application to extradition treaties.

Mr. Lawrence, in the query above quoted, refers to the provision in the sixth amendment which declares that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury." The right here guaranteed is hat of a speedy and public trial by an impartial of the State and district wherein the crime

shall have been committed, which district shall have been previously ascertained by law." The words of the amendment which Mr. Lawrence did not quote, show that the whole provision relates to persons who are to be tried for crime under the authority of the United States, and hence that the provision has nothing to do with extradition, since the crime for which extradition is sought was not committed within any "State" or "district" of the United States, and since the surrender of a fugitive criminal to a foreign government under the stipulations of a treaty is not a trial for any crime. The cases referred to in the amendment are those in which the Government of the United States arraigns and tries the accused for offenses committed against its laws; and these certainly are not cases in which that Government is asked, in pursuance of a treaty, to deliver up fugitive criminals for offenses committed against a foreign government.

So, also, in another query, Mr. Lawrence suggests the inquiry "whether extradition, either with or without treaty, is consistent ***** with the bills of right, as incorporated into the organic laws of all the States of the Union." If he had simply said "without treaty," there would have been force in the query; but when he says "either with or without treaty," he raises a question which can very easily be answered. The Constitution makes all the treaties of the United States a part of "the supreme law of the land," and, as such, superior to any State Constitution or State law. It gives to the President the treaty power; and if he makes extradition treaties, with the advice and consent of the Senate, and if such treaties are not repugnant to the Constitution itself, then, being made, they are a part of this "supreme law." Any thing in State constitutions inconsistent therewith would not displace the authority and operation of these treaties, but simply render those constitutions null and void to the extent of the inconsistency. The treaties would not yield to the constitutions, but the latter would yield to the former.

The conclusion, derivable from this survey of the subject, is that extradition treaties come fully within the scope of the treaty power as given to the President, subject to the qualification of the Senate's approval by the requisite majority, and that there is nothing in any part of the Constitution which excludes such treaties from the exercise of the power. The doctrine is well settled in this country that it is only through such treaties that extradition can be had at all. The whole question, therefore, as to extradition, as to the making of treaties for this purpose, as to the crimes that shall be enumerated, as to the terms upon which mutual delivery shall be granted, and as to the nations with which the treaties shall be made, is, by the Constitution, submitted to the sound discretion of the

President, subject to the limitation imposed by the power of the Senate.

Where nations are widely separated from each other, and have but few facilities of intercourse, and especially where they are very different in the type of their civilization and their criminal codes such treaties are much less necessary and far less expedient than between nations that are co-terminous, and whose codes for the trial and punishment of crime are substantially similar. No civilized country would think of making such a treaty with a nation of barbarians. The object of extradition is not to furnish an opportunity for cruelty and oppression in dealing even with criminals, but to promote the general interests of enlightened justice.

The Government of the United States does not

permit the criminal laws of other countries to operate within its own territory, and does not extend its laws to offenses committed elsewhere than under its own jurisdiction. It tries and punishes offenders against its own laws and leaves other nations to do the same. Adopting this principle, it must either furnish an asylum to all fugitive criminals who may take refuge in this country, or enter into treaty stipulations for their surrender to the governments against whose laws they have offended. The latter is the policy which the Presidents of the United States have judged it expedient to adopt, as shown by the number of treaties which, with the approval of the Senate, they have negotiated for this purpose since 1842.

All nations are interested in the discouragement and suppression of crime; and extradition, under the stipulations and with the limitations and safeguards of a treaty, seems an appropriate means to this end. It is the only method of attaining the end in the class of cases to which it applies, unless nations undertake in their respective courts, and in cases where the offenders have sought safety by flight, the work of trying and punishing crimes committed against each other. There is no reason to suppose that the United States will ever adopt this expedient as a substitute for extradition. It contradicts the fundamental principle of American jurisprudence which requires that crimes shall be tried and punished under the law of the place where they were committed. Whatever objections there may be against extradition, they are far less serious than those against such an expedient.

trial and punishment. Treaties to this end are a rational and just exercise of the treaty power. The object to be attained is worthy of the method; and it is clearly better that the principles governing the method should be settled beforehand by a mutual understanding and agreement between nations, rather than leave the whole question to be determined in each specific case. Nations, in this way, place themselves in the friendly attitude of mutual service in respect to a matter in which they have a common interest.

PUBLIC POLICY AS A BASIS FOR JUDICIAL DECISIONS.

BY FRANK L. WELLS.

Fall contracts were to be enforced without regard

to the effect they would have upon the public good, the general welfare of society, it would be conducive of the utmost immorality and dishonesty. Legislatures could be bribed, markets cornered, marriages prevented, illegal divorces obtained, and the elective franchise seriously impaired. Moreover, the courts would be compelled to allow compensation for the most pernicious practices. But for the prevention of this we find the well-known, though somewhat chaotic principle of the common law, that all contracts which in themselves are wrong, which are based on an illegal or immoral action, or which would injure the social or commercial interests of the State, are contrary to public policy, and will not receive judicial cognizance. The Illinois court says: "It is a rule of common law that all contracts in violation of its principles or opposed to legislative enactments, or that are opposed to public policy, are void. The object of all laws is to repress vice, and to promote the general welfare of the State or society, and an individual shall not be assisted by the law in enforcing a demand originating in a breach or violation on his part of its principles and enactments. And the rule was laid down by the United States court, that where the contract grows immediately out of, or is connected with, any illegal or immoral act, a court of justice will not lend its aid to its

enforcement. And if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is thereby equally tainted." 20 Ill. 215.

And even if a contract is not in itself injurious, but belongs to an injurious class, it is void. 13 La. Ann. 209.

And courts should, of their own motion, dismiss a case based upon a consideration which contravenes public policy, whether the partics to the suit take the objection or not. 15 Cal. 387.

Where a board of county commissioners had offered a reward of $200 for the conviction of the first ten

power in the trial of criminals or the administration of punishment. It simply says that fugitives from justice shall not, by flight from the jurisdiction of the laws which they have violated, be protected against arrest in the country to which they have fled, and that, upon proper evidence of their guilt, they shall be returned to that jurisdiction for

ten, $400 for each succeeding ten, and if the election was decided to be illegal, $1,200 in addition, the Illinois court held, that it gave too great a temptation to subornation, and, therefore, was against public policy. 67

Ill. 256.

It is doubtful whether this decision would be sustained by the other States, as it would tend to the prevention of rewards for the capture of criminals, without which many fugitives would entirely escape the

avenging hand of justice. But it seems to illustrate how careful are the courts to annul any contract which would be prejudicial to the public good.

Contracts in restraint of trade are in direct violation of the principles of well-ordered society. But contracts in restraint of trade if not general, but only limiting certain particular persons, and within reasonable limits, are not void. 11 Ind. 72. Thus, a contract not to run boats on a certain line of travel is not void. 6 Cal. 258; 20 Wall. 64. Nor is a contract for the exclusive control of a firm's manufacture. 49 Cal. 665. So a "bond or promise upon good consideration not to exercise a trade for a limited time, at a particular place, or within a particular parish, is good. But where it is general not to exercise a trade throughout the kingdom, it is bad, though founded on good consideration, as being a too unlimited restraint of trade, and operating oppressively on one party without benefiting either." 17 Cow. 307. Such a contract must be limited to time or place. 4 Daly (N. Y.), 168.

Any contract which would influence an officer to neglect his duty, or which remunerates him for what he is required by law to do, is contrary to public policy. But it has been held that a prisoner may contract with his jailer to furnish extra attention when necessary, as in case of sickness. Though, if such attention is obligated by law, it will be void. 40 N. Y. 547.

It is the privilege of every citizen to use all honorable means to obtain legislation, but this privilege is so easily taken advantage of by corrupt lobbyists and legislators, that the courts are especially zealous to keep the fountain of legislation pure and unpolluted. And any contract leading to improper, secret, or corrupt tampering with the Legislature, or for a contingent compensation for obtaining legislation, is void. 40 N. Y. 547; 16 How. 314.

To prevent witnesses from testifying, or any thing which would tend to induce them to testify falsely, could not legally be made the consideration of a contract. But an agreement with one jointly indicted with others, that in case he will testify fully and candidly, the facts will be presented to the court with a recommendation on the part of the prosecutor or prosecuting officer, that a nolle prosequi be entered as to him, is not against public policy. 60 N. Y. 362.

Positions of public trust cannot be made the subjects of bargain and sale. Thus, representations that a person could or would be appointed to official position, as an inducement to a party to make a contract, cannot be given in evidence, however false such representations may have been, or however much the party may have been injured by relying upon them. Such inducements are against public policy, and cannot be used as a ground for recovery in an action. 8 Kan. 601.

Where both parties were applicants for the position of United States assessor, and one agreed to withdraw on consideration that the proceeds should be divided, should the other receive the appointment, it was held to be invalid; and a new agreement after the appointment was decided to be in pursuance of the original contract and failed with it. 71 Penn. St. 282.

The prevention of competition at public sales is illegal. The Supreme Judicial Court of Massachusetts states the rule thus: "An agreement between two or more persons that one shall bid for the benefit of all, upon property about to be sold at public auction, which they desire to purchase together, either because they propose to hold it together or afterward to divide it into such parts as they wish individually to hold

neither desiring the whole, or any similar honest or reasonable purpose, is legal in its character, and will be enforced. But such agreement, if made for the purpose of preventing competition and reducing the property to be sold below its fair value, is against public policy, and therefore illegal." 115 Mass. 592.

Railroads as quasi public corporations have no right to contract to change either their route or the position of their depots. Thus where a stockholder agreed to use his influence to locate the depot at a certain point, the court, in reply to his answer that the position was best for all concerned, said: "Nor is it any satisfactory answer to say that when the agreement was made he had come to the opinion that the location in question was best for the interests of the public, and for the interests of the corporation. That opinion might be changed by new views and new offers." 5 Ore. 177. But if there are two routes laid out, one through a farm, and the other along the highway, the company may contract to choose the one along the highway and leave the farm intact. 41 Iowa, 293. The North Carolina court thinks a railroad director should not be led into temptation, and to guard against it, refuses to allow him to buy up, and speculate in, claims against the company. 10 N. C. 393.

Public policy also demands that no fraud or imposition shall be practiced. And where one physician contracted with another, whereby the latter took the office of the former for a term, was licensed in his name, personated him when applied to, and prescribed in his name, the court held that it was an imposition on the public, and as such, contrary to public policy. 66 Ill. 452.

Gambling contracts are void. Thus, no contract to pay a bet upon any game of chance will stand. Nor will a wager upon horseracing, or an election, if it can in any way affect the result of the election. But if the election is held in another State, the contract is good, as it cannot be supposed to affect the result. 21 Ill. 245. The rule may be stated: That if a contract is based on any game of chance, or if it will lead to the violation of the principles of good government, the contract is void. But if it affects none but the parties it is not against public policy and is therefore legal.

No contract will be enforced which is made on Sunday. But as this branch is mostly statutory, the decisions on the subject are mainly but constructions of State laws, and not suited to a general magazine article.

Any contract based on the prevention of, or brokerage in, the marriage relation are void as contrary to public policy, no matter how much midnight oil, or bituminous coal a marriage broker may consume, or how much she may even spend in clothes to make her patron more desirable. If her client prove ungrateful she can only sigh for the days that are gone, and the money that is spent. The courts will afford her no relief. 62 Barb. 92.

As to the phase of public policy relating to lotteries and stocks: As there is much difference in the different States in regard to this, and as it is largely statutory, I will but mention these important branches. The States where there is no statute authorizing lotteries declare them to be in violation of the rules of public policy as being a fraud and imposition. But some States even have lotteries managed by the State itself. As for stocks, the legitimate buying and selling does not contravene public policy. But that which

tends to give a fictitious value or depreciate the true

worth, is against public policy, as it encourages a hurtful system of speculation and is in many ways injurious to the community.

WHAT CONSTITUTES DELIVERY ON SALE OF PERSONAL PROPERTY.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877.

GARFIELD, plaintiff in error, v. PARIS. Defendant, while in New York, ordered over $4,000 worth of spirituous liquors from plaintiffs, to be sent to him in Michigan. At the time, and as part of the agreement for the sale of the liquors, plaintiffs agreed to furnish certain labels, which were copyrighted and furnished exclusively by them, and which added value to the liquor when attached to the package containing it, without extra charge. The labels were delivered to defendant in New York and the liquors shipped to him in Michigan. By the laws of the latter State the sale of spirituous liquors is forbidden, and contracts founded on such sale are void. Held, that it was for the jury to determine whether the labels constituted a part of the goods sold to defendant, so as to render a delivery of them in New York a sufficient delivery within the statute of frauds, and thus render the contract a New York one and not a Michigan one, and notes given for the purchase-price of the liquors valid, and a verdict for the plaintiff on such notes would not be set aside.

ERROR

to the Circuit Court of the United States for the Eastern District of Michigan. The facts appear in the opinion.

Mr. Justice CLIFFORD delivered the opinion of the court.

Neither the manufacture nor the sale of spirituous or intoxicating liquors is allowed by the law of the State where the present controversy arose. Instead of that the State law provides that all payments made for such liquors so sold may be recovered back, and that all contracts and agreements in relation to such sales shall be utterly null and void against all persons and in all cases, with an exception in favor of the bona fide holders of negotiable securities and the purchasers of property without notice. 1 Comp. Laws, 690.

Two bills of goods consisting of spirituous liquors were purchased of the plaintiffs by the defendants, which, including exchange, amounted to $4,143.69. Payment being refused the plaintiff's brought suit in the court below to recover the amount and the verdict and judgment were for the plaintiffs. Exceptions were taken by the defendants and they sued out the present writ of error.

Sufficient appears to show that the plaintiffs are citizens of New York and that the defendants are citizens of Michigan; that the liquors were purchased of the plaintiffs, as alleged, and that the same were received and sold by the defendants, but they set up the prohibitory liquor law of the State, providing that all such contracts are utterly null and void.

Evidence was introduced by the plaintiffs showing that the liquors were ordered by one of the defendants at a time when he was temporarily in the city of New York, and that the plaintiffs by his request sent certain labels to be attached to the same to the defendant at the hotel in that city where he was stopping. By the agreement at the time the sale was made the plaintiffs were to furnish these labels to the purchasers, and the evidence showed that the value of the labels entered into the price charged for the liquors, and that the labels, by the terms of the contract, were to

be furnished to the buyers by the sellers without any other charge than the price to be paid for the liquors. Labels of the kind were something more than ordinary labels affixed to bottles, as they indicated not only the kind of liquor which the bottle contained, but also embraced an affidavit that the distillation was genuine, and of the particular brand manufactured and distilled by the plaintiffs, support to which is derived from the fact that the label was copyrighted, so that no other person than the plaintiffs had any right to make, use, or vend it.

Certain questions were submitted to the jury, among which were the following: Were there any receipt and acceptance in New York of part of the goods sold, and if so, what was so received? to which the jury answered, there was, to wit, certain labels. Was any thing added to the price of the liquors on account of the labels, and if so, what amount? Answer.-There was nothing added, but the labels added to the value of the liquors and formed part or parcel of the price.

Testimony was offered by the plaintiffs in respect to the delivery of the labels to the defendant while he was at the hotel in New York, to which the defendants objected, but the court overruled the objection and the testimony was admitted, subject to the defendants' objection.

Errors assigned are in substance and effect as follows: (1) That the court erred in refusing to charge the jury that the delivery of the labels as proved was not a receipt and acceptance of part of the goods sold within the meaning of the State statute of frauds. (2) That the court erred in refusing to charge the jury that the evidence was not sufficient to take the case out of the statute of frauds. (3) That the court erred in refusing to charge the jury that the sale was not consummated until the defendants received and accepted the goods in the State where they resided. (4) That the court erred in instructing the jury that the defense set up is one not to be favored, and that the proof to support it must be clear and satisfactory before the jury can consistently enforce it. (5) That the statute is a penal statute in derogation of the rights of property, and that for that reason if for no other it must receive a strict construction. (6) That the court erred in instructing the jury that if the labels were inIcluded in the contract and the liquors were worth more to the defendants on account of the labels, then the receipt and acceptance of the same by the acting defendant took the case out of the New York statute of frauds, and their verdict should be for the plaintiffs.

1. Due exception was also made to the ruling of the court in admitting the evidence reported in respect to the delivery and acceptance of the labels furnished to the purchasers at the time the order for the liquors was filled, the objection being that the labels are not mentioned in the plaintiffs' bill of particulars filed in the case.

Matters of evidence are never required to be stated in such a paper. Courts usually require such a notice where the declaration is general, in order that the defendant may know what the cause of action is to which he is required to respond. Nothing is wanted in this case to meet that requirement, as all the items of the demand are distinctly and specifically stated in the bill filed in compliance with the order of the court.

Merchants selling spirituous liquors in bottles usually label the bottles to indicate the kind, character, age, quality, or proof of the liquor, or to specify the name of the manufacturer or the place where it was manufactured or distilled. Such are somewhat in the nature of trade-marks, and are useful to the seller of the liquors to enable him to distinguish one kind of liquor from another without opening the bottle, and to commend the article to his customers without oral explanation.

2. Coming to the errors formally assigned, it is manifest that the first and second may be considered together, as they depend entirely upon the same considerations.

Both parties concede that the bargain for the sale of the liquors in this case was made in New York, and by the laws of that State contracts for the sale of any goods, chattels, or things in action for the price of fifty dollars or more shall be void unless (1) a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive part of such goods or the evidences or some of them of such things in action; or (3) unless the buyer shall at the time pay some part of the purchase-money. 3 Rev. Stats. (6th ed.) 142, § 3.

Four answers are made by the plaintiffs to that proposition, each of which will receive a brief consideration:

(1) That the defendants received and accepted the labels which the plaintiffs contracted to furnish at the time they filled the order for the liquors. (2) That the case is not within the statute of frauds, inasmuch as the defendants received the liquors and sold the same for their own benefit. (3) That the statute of the State prohibiting the sale of such liquors and declaring such contracts null and void has been repealed. (4) That the subsequent letter written by the defendants to the plaintiffs takes the case out of the operation of the statute requiring such a contract to be in writing.

Authorities almost numberless hold that there is a broad distinction between the principles applicable to the formation of the contract and those applicable to its performance, which appears with sufficient clearness from the language of the statute-such a contract must be in writing or there must be some note or memorandum of the same to be subscribed by the party to be charged - but the same statute concedes that the party becomes liable for the whole amount of the goods if he accepts and receives part of the same or the evidences or some of them of such things in action, and the authorities agree that where the question is whether the contract has been fulfilled it is sufficient to show an acceptance and actual receipt of a part, however small, of the thing sold in order that the contract may be held to be good, even though it does not preclude the purchaser from refusing to accept the residue of the goods, if it clearly appears that they do not conform to the contract. Benj. on Sales (2d ed.), 117; Hinde v. Whitehouse, 7 East, 55; Morton v. Tibbett, 15 Ad. & Ell. (N. S.) 434.

Hence, said Lord Campbell, in the case last cited, the payment of any sum in earnest to bind the bargain or in part payment is sufficient, the rule being that such an act on the part of the buyer, if acceded to on the part of the vendee, is an answer to the defense. Edam v. Dudfield, 1 Ad. & Ell. (N. S.) 305.

Accept and receive are the words of the statute in question, but the law is well settled that an acceptance sufficient to satisfy the statute may be constructive, the rule being that the question is for the jury, whether the circumstances proved, of acting or forbearing to act, do or do not amount to an acceptance within the statute. Bushel v. Wheeler, 15 Ad. & Ell. (N. S.) 445; Chitty on Cont. (10th ed.) 367; Parker v. Wallis, 5 Ell. & Bl. 26; Lillywhite v. Devereux, 15 Mees. & Wels. 290; Simmonds v. Humble, 13 C. B. (N. S.) 261; Addison on Cont. (6th ed.) 169.

Questions of the kind are undoubtedly for the jury, and it is well settled that any acts of the parties indicative of ownership by the vendee may be given in evidence to show the receipt and acceptance of the goods to take the case out of the statute of frauds. Conduct, acts and declarations of the purchaser may be given in evidence for that purpose, and it was held in the case of Currie v. Anderson, 2 Ell. & Ell. 598, that the vendee of goods may so deal with a bill of lading as to afford evidence of the receipt and acceptance of the goods therein described. Gray v. Davis, 10 N. Y. 291.

Throughout it should be borne in mind that one of the defendants in person visited the plaintiffs' place of business, and while there ordered the liquors, and that the liquors were all received by the defendants at their place of business and were sold by them for their own benefit, that the contract between the sellers and purchasers was that the former should furnish the labels as part of the contract, and the evidence shows that they fulfilled that part of the contract and that they delivered the same to the contracting party at his hotel before he left the State where the purchase was made.

Satisfactory evidence was also introduced by the plaintiffs showing that they drew a draft on the defendants for the payment of the price and that the defendants answered the letter of the plaintiffs declining to accept the same, as more fully set forth in the record, in which they state that the purchase was on four months, with the further privilege of extending the time two months longer by allowing seven per cent interest, adding that if the plaintiffs doubted their word they had "a written contract to that effect." What they claim in the letter is that the arrangement was made with the salesman, and they state that they would not have given him the order, if he had not given them "those conditions." They make no complaint that the liquors were not of the agreed quantity and quality, and certainly leave it to be implied that they had been duly received and that they were satisfactory.

It was contended by the plaintiffs that the case was taken out of the statute of frauds-(1) Because the labels were a part of what was purchased and that the defendants accepted and received the same at the time and place of the purchase. (2) That the subsequent letter, as exhibited in the record, is sufficient for that purpose.

Enough appeared at the trial to show that the labels were copyrighted, and that the plaintiffs agreed to furnish the same without any additional charge, and the bill of exceptions also shows that it was conceded that the defendants accepted and received the labels at the hotel as claimed by the plaintiffs. Still the defendants denied that the labels were of any value, or that they entered into or constituted any part of the things purchased, both of which questions the circuit