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R. Co., 46 N. Y. 644, it was held that, under a statute providing that "any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered together with the excess so received by the party paying the same," only one penalty of fifty dollars, with the excess of fare, could be recovered for all acts done with the party bringing the action previous to its commencement. The same doctrine was applied in Sturgis v. Spofford, 45 N. Y. 446. But in Suydam v. Smith, 52 id. 383, where a penalty was imposed by the statute for each offense," it was held that the party aggrieved could recover for each offense.
In the case of Allen v. Woonsocket Company, 11 R. I. 288, a corporation existed under a charter wherein there was no specification of the kind of business to be done, nor did any thing in the corporate name suggest it. All the stock was held by one person. This corporation entered into partnership with one Allen, which under the contract might
be terminated at the will of the corporation. contract was held not to be ultra vires on the part of the corporation. There are several authorities which seem to hold the view that corporations cannot enter into a partnership. See Charlton v. New Castle & Carl. Ry Co., 5 Jurist (N. S.), 1097; Whittenton Mills v. Upton, 10 Gray, 582; N. Y. & S. Canal Co. v. Fulton Bank, 7 Wend. 412; Catskill Bank v. Ulster Iron Co., 14 Barb. 479. But as stated in the principal case the grounds on which proceedings of corporations have been held void as being beyond their charter powers, are not applicable here. These grounds are, first, because the charter when accepted constitutes a contract between the stockholders, that the corporation shall be confined to its proper business, and that a majority cannot change it; and second, because public policy requires that it should be confined to the business and the mode of managing business prescribed by the charter, which is its law. Here, so far as the first ground was concerned, no one had a right to complain but the one stockholder who managed the company, and as to the second ground, there was nothing in the act of incorporation specifying or limiting the business directly or by implication, and nothing could be implied from the name. See further on the subject, Shrewsbury v. N. Staffordshire Ry. Co., 35 L. J. Rep. 156; Columbus P., &c., R. R. Co. v. Ind. & B. R. R. Co., 5 McLean, 450; Androscoggin & Ken. R. R. Co. v. Androscoggin Co., 52 Me. 417; Bartlett v. Nor. & Wor. R. R. Co., 33 Conn. 560.
In the case of Hurdman v. North East. Ry. Co., 38 L. T. Rep. (N. S.) 339, it is held that one who places an artificial mound upon his property and thereby causes rain water percolating naturally to come upon the property of his neighbor, is liable to
the latter in respect to the damage so caused. The court distinguishes the case from those of Fletcher v. Rylands, 19 L. T. Rep. (N. S.) 220; Wilson v. Wadden, 35 id. 639; Baird v. Williamson, 15 C. B. (N. S.) 376; Crompton v. Lea, 31 L. T. Rep. (N. S.) 469, and other cases, where the principle is held that if, in consequence of a mine owner on the rise working out his minerals, water comes by natural gravitation into the mine of the owner on the deep, the latter mine owner cannot maintain an action for the damage, saying that excavating minerals is the natural use of mineral lands, and the owner of such lands takes them subject to the annoyance caused by the natural user by his neighbor of his land. See Wilson v. Waddell, L. R., 2 App. Cas. 99; Rylands v. Fletcher, L. R., 3 H. L. 328.
In the case of Beals v. Providence Rubber Co., 11
R. I. 381, a lease contained a covenant by the lessee "to pay the taxes of every name and kind time" during the term of the lease. This was held that should be assessed on the premises at any not to cover an assessment for benefits accruing from street improvements. Such an assessment is a tax in the generic sense of that word, but in its meaning as ordinarily used, a tax is something exacted for the public service and not by way of compensation for benefits specially conferred. As the court says, such a use of language is not uncommon. For instance, men are animals; and yet men are not animals within the meaning of the word as ordinarily used. So an assessment for benefits has frequently been held not to be included in the meaning of the word "taxes" in statutes such as those, exempting particular kinds of property from taxation, etc. Matter of Mayor of New York, 11 Johns. 7; Second Congregationalist Soc. v. City of Providence, 6 R. I. 474. In Jeffrey v. Neale, L. R., 6 C. P. 240, it is said that "it has been frequently held in cases of this nature, some amount of qualification must be placed on words which at first sight might be capable of a very extensive signification." This remark is. borne out by the English cases and by American authority. See Tidswell v. Whitworth, L. R., 2 C. P. 326; Baker v. Green, L. R., 3 Q. B. 148; Southall v. Leadbeater, 3 Term Rep. 458; Barrett v. Duke of Bedford, 8 id. 602; Matter of College Street, 8 R. I. 474; Bolling v. Stokes, 2 Leigh, 178; Harvard College v. Boston, 104 Mass. 482; People v. Mayor of Brooklyn, 4 N. Y. 432. But in some instances constitutional provisions with respect to taxation have been held to include assessments for benefits. In Minnesota a provision that all taxes shall be as nearly equal as may be, and according to the value of the property taxed, was held to apply to a legislative act relating to the improvement of a street. Stinson v. Smith, 8 Minn. 366. And in Alabama a like provision was held to forbid an assessment on abutting lots in proportion to the number of front feet. Mobile v. Dargan, 45 Ala. 310. See, also, Chicago v. Larned, 34 Ill. 203. Also Codman v. Johnson, 104 Mass. 491; Curtis v. Pierce, 115 id. 188.
contracting parties to the other, such person shall not, until he has been restored, or had an opportunity of returning to the country from whence he was surrendered, be triable or tried for any offense com
BY SAMUEL T. SPEAR, D. d.
HE English Extradition Act of 1870, of which mitted in the other country prior to the surrender,
is made in the of
THE ENGLISH EXTRADITION ACT.
between Great Britain and the United States with reference to the case of Winslow, grew out of the investigations of a committee appointed by the House of Commons, and directed to examine the whole subject of extradition law and report any recommendations adapted to its improvement. The previous practice of Parliament had been to provide by special acts for the execution of extradition treaties. Five such acts were in existence. In 1870 it was judged expedient to establish a comprehensive and general code on the subject, applicable to all the extradition treaties of the British Government, and designed to be corrective of evils which had been disclosed by the committee of the House of Commons. The preparation of this code was mainly the work of Sir Thomas Henry.
Lord Derby, in the Winslow correspondence, gives the following explanation of this law: "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. Her Majesty's Government consider the provisions of the act as having been devised, not in the particular interests or for the particular ends of Great Britain, but as the embodiment of what was the general opinion of all countries on the subject of extradition, and as being beneficial to all and injurious to none. That the general opinion of European nations has justified this view is proved by the acceptance, by most of the leading nations of Europe, of extradition treaties based on its provisions." Foreign Relations of the United States, 1876, p.
Mr. Clarke, in an Appendix to his treatise on Extradition, sec. ed., gives the full text of the extradition treaties of Great Britain, since 1870, with Germany, Belgium, Italy, Denmark, Austria, Sweden and Norway, and Brazil, every one of which expressly recognizes the principle that an extradited party is triable only for the crime or crimes in respect to which his surrender was made. The seventh article of the treaty with Germany provides as follows: "A person surrendered can in no case be kept in prison or brought to trial in the State to which the surrender has been made for any crime or on account of any other matters than those for which the extradition shall have taken place. This stipulation does not apply to crimes committed after the extradition." So, also, the sixth article of the treaty with Belgium provides thus: "When any person shall have been surrendered by either of the high
he was surrendered."
Similar provisions are found in the other treaties contained in the Appendix of Mr. Clarke. The acceptance of this principle by these nations, in accordance with the English act of 1870, shows their understanding of the general doctrine of extradition. If the English doctrine on this subject had been repulsive to their views, they certainly would not have made treaties embodying it in express
A letter addressed by Sir E. Thornton to Secretary Fish, on the 22nd of September, 1870, soon after the English act was passed, called the attention of the United States Government to its provisions. Mr. Fish made the letter an occasion for inquiring whether it would not be possible, in a new treaty, to provide "that, if during the trial of a person whose extradition had been asked for a crime, such as larceny, evidence previously unknown should appear that a prisoner had been guilty of a higher crime, such as murder, it should be legal to try him for the latter crime." Sir E. Thornton was instructed to answer this question, and did answer it, as follows: "That any provision in the treaty by which the fugitive surrendered for one offense mentioned in the schedule may be tried for any offense committed prior to his extradition, other than the extradition crime for which he was surrendered, would be inadmissible." Foreign Relations of the United States, 1876, p. 228.
The "schedule" here referred to is a part of the act of 1870, containing a list of extradition crimes, including those in the then existing treaties of Great Britain, which must not be exceeded in the negotiation of other treaties. Parliament chose by law to make a list of such crimes, and thereby limit the treaty power.
The correspondence between Sir E. Thornton and Secretary Fish, immediately after the passage of the English act, and the subsequent correspondence between them in relation to a new treaty, show that the position taken by the British Government in regard to Winslow was not an idea extemporized for that occasion, and hitherto unknown to the United States. The course which the former, by a mistake, supposed that the latter meant to pursue with reference to Lawrence, raised the question in regard to Winslow whether, in the event of his surrender, a similar course might not be adopted in respect to him. A guaranty against such a course, as expressly provided for in the English act, and, as claimed by Lord Derby, virtually involved in the treaty of 1842, was hence required before making the delivery.
Secretary Fish declined to give any guaranty as to the trial of Winslow; and thus the whole question, as to the construction of the treaty and the application of the English act thereto, was opened for diplomatic discussion.
This discussion was continued until the early part of July, 1876; and in the meantime the President, on the 20th of June, informed Congress that, if the British Government maintained its position, he should not, unless specially requested to do so by Congress, take any farther "action either in making or granting requisitions for the surrender of fugitive criminals under the treaty of 1842." On the 27th of the following October, Sir E. Thornton informed Secretary Fish that Her Majesty's Government had determined, “as a temporary measure until a new extradition treaty can be concluded," and without abandoning its construction of the treaty of 1842, to recede from the demand of a formal guaranty in respect to the trial of an extradited person; and, on the 22nd of the next December, the President communicated this fact to Congress, and declared his purpose to regard the treaty as still operative, and in the future to make and grant requisitions for the surrender of fugitive criminals under it. Thus the controversy came to an end, leaving the question in such a form that, although the Government of the United States is not required to give a positive pledge as to the trial of an extradited party, considerations of prudence and international courtesy clearly suggest that the British view on this subject should not be practically disregarded.
In the course of the discussion between the two governments, three of the provisions of the English Extradition Act, and especially two of them, came under consideration; and these we now proceed to examine:
1. The nineteenth section of the act contains one of these provisions, and reads as follows:
"Where, in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the first schedule to this act, is surrendered by that foreign State, such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offense committed prior to the surrender in any part of Her Majesty's dominions, other than such of the said crimes as may be proved by the facts on which the surrender is grounded.'
The party in relation to whom this statute operates is represented as having been surrendered "in pursuance of any arrangement with a foreign State," and as having been "accused or convicted of any crime which, if committed in England, would be one of the crimes described in the first schedule to this act." This language distinctly designates the person to whom the statute refers.
The schedule provides that the crimes, therein mentioned, shall "be construed according to the
law existing in England, or in any British possession (as the case may be), of the date of the alleged crime, whether by common law or by statute made before or after the passage of this act." The theory of this provision is, that the law, as it was when the crime was committed, shall fix its character, and hence that no subsequent legislation, giving to the act a new and different character, shall be operative in that particular case.
Now, from the list of crimes triable under the special jurisdiction secured by extradition, the statute excludes all offenses "committed prior to the surrender in any part of Her Majesty's dominions,” and all offenses not "proved by the facts on which the surrender is grounded," until the extradited party "has been restored or had an opportunity of returning to said foreign State.' This provides that, before he can be tried for any but the extradition crime or crimes, he must by the British Government have been restored to the country from which he was removed, or must have had an opportunity of returning thither by the withdrawal for a reasonable time of all restraint upon his liberty. The implication is that, if being thus restored, he chooses, of his own accord, to return to the jurisdiction of the British Government, or that if not being restored, but having the opportunity of return to the foreign State from which he was removed, he chooses not to do so, but to remain under the jurisdiction acquired by the removal, then, in either case, he may be tried for an offense committed prior to the surrender, and not included in the terms thereof. The immunity against trial for any but the extradition charge is limited by these qualifications. Moreover, if the party shall, after his surrender, commit a crime or crimes in any part of Her Majesty's dominions, either while in custody or after his discharge, then no immunity whatever, as to trial therefor, is secured to him. His case, upon this supposition, would be similar to that of any other offender.
The obvious design of the statute is to confine the jurisdiction gained by extradition to the specific purpose set forth in the proceedings when gaining it. The rule laid down to this end is that the triable crime, subject to the qualifications above stated, must be such as may be proved by the This facts on which the surrender is grounded." assumes that these "facts," supported by the proper evidence, were submitted to the government asked to make the delivery; that, in its judgment, they sufficiently established the commission of the crime or crimes for which the extradition was sought, and that on this ground the delivery was made in pursuance of a treaty. The crime, thus shown by the "facts" brought out in the extradition proceedings, is the only one for which the party can be put on trial under British authority, "until he has been restored or had an opportunity of returning to
such foreign State," unless he shall commit some other crime after his extradition. This does not preclude additional evidence, besides that on which he was surrendered, in proof of the crime when he is brought to trial; but it does preclude a trial for any other crime until one of the specified conditions of such trial shall be supplied, or the party, after extradition, shall have committed some other crime.
The British Government, by this part of the English act, concedes and means to concede to other governments precisely what it expects and demands from them. There can be no pretense that the statute is in conflict with their rights, as growing out of extradition treaties. It simply limits the jurisdiction of British courts to the offense or offenses on the charge and proof of which extradition was claimed and granted, and thus protects the extradited party against any abuses of power by these courts. Such a case as that of Heilbronn, to which Secretary Fish referred, could not occur under this statute.
2. A second provision, found in the second subsection of the third section of the English act, reads as follows:
"A fugitive criminal shall not be surrendered to a foreign State unless provision is made by the law of that State, or by an arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign State for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded."
The practical end, sought by this clause of the English act, is to limit the jurisdiction over a fugitive criminal when surrendered by Great Britain to a foreign State to "the extradition crime proved by the facts on which the surrender is grounded." This description of the crime assumes that it comes within the enumeration of the treaty; that the foreign State has charged the crime upon a given person; that, as a basis for his surrender, proof of his guilt has been furnished; and that the British Government, having examined the case, has judged the evidence sufficient to justify the surrender, in order that the party accused may, in the foreign State demanding him, be put on trial for the crime, and that only, which was proved by the facts on which the surrender was grounded. The theory of the provision is that this, and this only, is the crime for the trial of which the surrender was made, and hence that the jurisdiction granted thereby is limited to this purpose.
The method of gaining this end, as provided for in the clause, is to forbid the surrender of a fugitive criminal "to a foreign State unless provision is made by the law of that State, or by arrangement, that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign State for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded." Parliament chose in this way to secure a guaranty beforehand, that the jurisdiction, given by surrender on the part of Great Britain, would be confined to the purpose for which it was given.
It is true that the treaty of 1842 between the two
governments does not, in express terms, contain any
Lord Derby, in his letter to General Schenck, immediately after the demand for Winslow was made, referred to this statute, remarking that "the Secretary of State for the Home Department fears that such provision in respect to the manner of its exethe claim advanced by your Government to try cution; yet if it implies that the jurisdiction acLawrence in the recent case of extradition, with quired under it is to be limited to the purpose for which you are familiar, for other crimes than the which it was acquired, then the provision is consistextradition crime for which he was surrendered, ent with the treaty. The treaty limits the right of amounts to a denial that any such law [exempting demand and the obligation of delivery to seven dishim from such trial] exists in the United States," tinctly enumerated crimes, thereby implying that and further remarking that the disclaimer of the jurisdiction secured under it is not to exceed your Government of any implied understanding exthis enumeration. The treaty still further provides isting with Her Majesty's Government in this rethat, in every case of actual delivery, the crime or spect, and the interpretation put upon the act of crimes for which the surrender is demauded shall Congress of August 12, 1848, chapter 147, section be definitely specified, just as clearly implying that 3, preclude any longer the belief in the existence the jurisdiction sought, if gained, has its limits in of any effective arrangement which Her Majesty's this specification. There is still further a provision Government had previously supposed to be practithat the delivery shall be made only when the cally in force." Foreign Relations of the United charge is proved by evidence that would, according States, 1876, p. 207. On this ground the surrender to the laws of the government asked to make the of Winslow was refused unless the requisite guar-surrender, be sufficient to justify the apprehension anty in respect to his trial was given. This was and commitment of the accused person for trial, if according to the English act of 1870, and, as the offense charged had been committed under its claimed by Lord Derby and denied by Secretary jurisdiction; and this implies that the offense Fish in the subsequent correspondence, according deemed proved by the delivering government, and to the spirit and intent of the treaty of 1842. in respect to which the delivery was made, is the
only one for which the party may be put on trial in virtue of the custody secured thereby. There is no right of demand, and no obligation of delivery, in violation of the terms from which these implications arise. A special and limited jurisdiction over the extradited party is, by the terms and necessary implications of the treaty, the only jurisdiction that can be gained under it in respect to any crime or cause of detention that antedates his surrender; and this jurisdiction relates to the offense or offenses for which he was surrendered.
What we then find in this clause of the English act is an express statement, in the form of a legal statute for the government of British officers, of the implied doctrine of the treaty of 1842 in respect to the crime for which the party surrendered under the treaty may be tried. The act denies no right which the treaty grants. It is not an attempt to supplement the treaty with provisions in contradiction of or inconsistent with its terms. It adds nothing to the treaty. It claims no authority or operation in or over the United States, or over any of the judicial or executive officers thereof. It simply asserts a British right under the treaty, and provides for securing it. There is no occasion for the United States to find fault with it, unless it is proposed to go beyond the treaty in dealing with an extradited person; and then the occasion for faultfinding would be with Great Britain.
The question as to when this treaty right shall be asserted, whether before delivery and as a condition thereof, or afterward in the form of a protest if there be an attempt to disregard it, is quite immaterial, so far as the right itself is concerned. If it exists at all, then its recognition may be made a condition of delivery, or it may be asserted by protest in the event of its violation. If Great Britain under the treaty has the right to protest against trial for any but the extradition offense, then it has an equal right to refuse a surrender without an adequate guaranty in this respect. The right of protest and the right of refusal rest on precisely the same principle. No government, in the execution of a treaty, is bound to consent in advance to what would be a violation of it, or omit such legislation as will secure its own rights as involved in the treaty. It has the right to insist upon its own rights; and this we understand to be the purpose of the English act in relation to the detention and trial
of persons who, as fugitive criminals, may by the
British Government be surrendered to foreign States.
3. A third provision of the English act, contained in its twenty-seventh section, reads as follows:
"The acts specified in the third schedule to this act are hereby repealed as to the whole of Her Majesty's dominions; and this act (with the exception of any thing contained in it which is inconsistent with the treaties referred to in the acts so repealed) shall apply (as regards crimes committed
either before or after the passage of this act), in the case of the foreign States with which those treaties were made, in the same manner as if an Order in Council referring to such treaties had been made in pursuance of this act, and as if such Order had directed that every law and ordinance which is in force in any British possession with respect to such treaties should have effect as part of this act: Provided that if any proceedings for or in relation to the surrender of a fugitive criminal have been commenced under the said acts previously to the repeal thereof, such proceedings may be completed, and the fugitive surrendered, in the same manner as if this act had not been passed."
There are four provisions in this section. The first is a repeal of the acts named in the third schedule to the act of 1870. The second is the application of this act to the extradition treaties referred to in the acts repealed. The third is an exception in this application as to any thing in the act inconsistent with those treaties. The fourth is the permission, where extradition proceedings have been commenced in any case, that they should be completed "in the same manner as if this act had not been passed."
The acts named in the schedule are five, and the treaties referred to in them are those with the United States, France, and Denmark. Secretary Fish claimed that the treaty of 1842 with the United States, as to the matter under discussion between the two governments, comes within the exception specified in this section of the act of 1870, because, as to that matter, the act is inconsistent with the treaty, and, hence, that in this respect it has no application to the treaty. Lord Derby, on the other hand, denied these propositions, and insisted that the English act of 1870 and the treaty of 1842 are not in conflict with each other, that the express doctrine of the act in regard to the trial of extradited criminals is implied in the treaty, and, hence, that on this subject, which was the only point in controversy between them, there is nothing in the act to except the treaty from its application.
It would be unreasonable to suppose that the British Parliament, consciously, and by intention, passed an act for the execution of extradition treat
ies, which it deemed in any particular inconsistent with these treaties, and at the same time adopted an exception in general terms to avoid a result for which it had deliberately provided, or that it meant to repeal or change the treaties when professing to legislate for their execution. The exception as to the application of the act is evidently a general provision of caution, for the purpose of being sure not to legislate in contradiction of existing treaties, and not a confession on the part of Parliament that it had so legislated in respect to any treaty. The exception is stated with no specific mention of any treaty, or of any provision in any treaty. To assume that Parliament designed, as to the matter in debate, to except the treaty of 1842 with the United