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Mills v.

R. Co., 46 N. Y. 644, it was held that, under a stat- the latter in respect to the damage so caused. The ute providing that "any railroad company which court distinguishes the case from those of Fletcher v. shall ask and receive a greater rate of sare than that Rylands, 19 L. T. Rep. (N. S.) 220; Wilson v. Wadden, allowed by law shall forfeit fifty dollars, which sum 35 id. 639; Baird v. Williamson, 15 C. B. (N. may be recovered together with the excess so re- S.) 376; Crompton v. Lea, 31 L. T. Rep. (N. S.) ceived by the party paying the same," only one 469, and other cases, where the principle is held penalty of fifty dollars, with the excess of fare, that if, in consequence of a mine owner on the could be recovered for all acts done with the party rise working out his minerals, water comes by bringing the action previous to its commencement natural gravitation into the mine of the owner on The same doctrine was applied in Sturgis v. Spofford, the deep, the latter mine owner cannot maintain an 45 N. Y. 446. But in Suydam v. Smith, 52 id. 383, action for the damage, saying that excavating minwhere a penalty was imposed by the statute “for erals is the natural use of mineral lands, and the each offense,” it was held that the party aggrieved owner of such lands takes them subject to the could recover for each offense.

annoyance caused by the natural user by his neigh

bor of his land. See Wilson v. Waddell, L. R., 2 In the case of Allen v. Woonsocket Company, 11 | App. Cas. 99; Rylands v. Fletcher, L. R., 3 H. L. R. I. 288, & corporation existed under a charter 328. wherein there was no specification of the kind of business to be done, nor did any thing in the cor

In the case of Beals v. Providence Rubber Co., 11 porate name suggest it. All the stock was held by R. I. 381, a lease contained a covenant by the one person. This corporation entered into partner- lessee “to pay the taxes of every name and kind ship with one Allen, which under the contract might that should be assessed on the premises at any be terminated the will of the corporation. This

time” during the term of the lease. This was held contract was held not to be ultra vires on the part of not to cover an assessment for benefits accruing the corporation. There are several authorities which from street improvements. Such an assessment is a seem to hold the view that corporations cannot

tax in the generic sense of that word, but in its meanenter into a partnership. See Charlton v. New Castle ing as ordinarily used, a tax is something exacted & Carl. Ry Co., 5 Jurist (N. S.), 1097; Whittenton for the public service and not by way of compensaUpton, 10 Gray, 582; N. Y. & S. Canal Co. v.

tion for benefits specially conferred. As the court Fulton Bank, 7 Wend. 412 ; Catskill Bank v. Ulster says, such a use of language is not uncommon. For Iron Co., 14 Barb. 479. But as stated in the principal instance, men are animals; and yet men are not case the grounds on which proceedings of corpora

animals within the meaning of the word as ordintions have been held void as being beyond their char- arily used. So an assessment for benefits has freter powers, are not applicable here. These grounds quently been held not to be included in the meaning are, first, because the charter when accepted consti- of the word “taxes ” in statutes such as those, extutes a contract between the stockholders, that the empting particular kinds of property from taxation, corporation shall be confined to its proper business, etc. Matter of Mayor of New York, 11 Johns. 7; and that a majority cannot change it; and second, Second Congregationalist Soc. v. City of Providence, because public policy requires that it should be con

6 R. I. 474. In Jeffrey v. Neale, L. R., 6 C. P. 240, fined to the business and the mode of managing busi-it is said that "it has been frequently held in cases ness prescribed by the charter, which is its law. of this nature, some amount of qualification must be Here, so far as the first ground was concerned, no placed on words which at first sight might be capable one had a right to complain but the one stockholder of a very extensive signification.” This remark is.

borne out by the English cases and by American who managed the company, and as to the second authority. See Tidswell v. Whitworth, L. R., 2 C. P. ground, there was nothing in the act of incorpora- 326; Baker v. Green, L. R., 3 Q. B. 148; Southall v. tion specifying or limiting the business directly or Leadbeater, 3 Term Rep. 458; Barrett v. Duke of Bedby implication, and nothing could be implied from ford, 8 id. 602; Matter of College Street, 8 R. Î. 474; the name.

Bolling v. Stokes, 2 Leigh, 178; Harvard College v. See further on the subject, Shrewsbury Boston, 104 Mass. 482; People v. Mayor of Brooklyn, v. N. Staffordshire Ry. Co., 35 L. J. Rep. 156; Colum- | 4 N. Y. 432. But in some instances constitutional bus P., &c., R. R. Co. v. Ind. & B. R. R. Co., 5 Mc- provisions with respect to taxation have been held Lean, 450 ; Androscoggin & Ken. R. R. Co. v.

to include assessments for benefits. In Minnesota a Androscoggin Co., 52 Me. 417 ; Bartlett v. Nor. & provision that all taxes shall be as nearly equal as

may be, and according to the value of the property Wor. R. R. Co., 33 Conn. 560.

taxed, was held to apply to a legislative act relating

to the improvement of a street. Stinson v. Smith, In the case of Hurdman v. North East. Ry. Co., 38 8 Minn. 366. And in Alabama a like provision was L. T. Rep. (N. S.) 339, it is held that one who held to forbid an assessment on abutting lots in proplaces an artificial mound upon his property and portion to the number of front feet. Mobile v. Darthereby causes rain water percolating naturally to gan, 45 Ala, 310. See, also, Chicago v: Larned, 34

Also Codman v. Johnson, 104 Mass. 491; come upon the property of his neighbor, is liable to 'Curtis v. Pierce, 115 id. 188.

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contracting parties to the other, such person shall THE ENGLISH EXTRADITION ACT.

not, until he has been restored, or had an opportunity

of returning to the country from whence he was BY SAMUEL T. SPEAR, D. D.

surrendered, be triable or tried for any offense comNHE English Extradition Act of 1870, of which mitted in the other country prior to the surrender,

frequent mention is made in the correspondence other than the particular offense on account of which between Great Britain and the United States with he was surrendered." reference to the case of Winslow, grew out of the Similar provisions are found in the other treaties investigations of a committee appointed by the contained in the Appendix of Mr. Clarke.

The acHouse of Commons, and directed to examine the ceptance of this principle by these nations, in acwhole subject of extradition law and report any cordance with the English act of 1870, shows their recommendations adapted to its improvement. The understanding of the general doctrine of extradiprevious practice of Parliament had been to provide tion. If the English doctrine on this subject had by special acts for the execution of extradition

been repulsive to their views, they certainly would treaties. Five such acts were in existence. In 1870 not have made treaties embodying it in express it was judged expedient to establish a compre- terms. hensive and general code on the subject, applicable A letter addressed by Sir E. Thornton to Secreto all the extradition treaties of the British Govern- | tary Fish, on the 22nd of September, 1870, soon ment, and designed to be corrective of evils which after the English act was passed, called the attenhad been disclosed by the committee of the Housetion of the United States Government to its proof Commons. The preparation of this code was visions. Mr. Fish made the letter an occasion for mainly the work of Sir Thomas Henry.

inquiring whether it would not be possible, in a new Lord Derby, in the Winslow correspondence, gives treaty, to provide " that, if during the trial of a the following explanation of this law: “It is to be person whose extradition had been asked for a crime, regarded as intended to prevent, for the future, such as larceny, evidence previously unknown evils that were pointed out by Mr. Hammond and should appear that a prisoner had been guilty of a others, as having occurred, and being liable to oc- higher crime, such as murder, it should be legal to cur, in private prosecutions to which the attention try him for the latter crime." Sir E. Thornton was of the Government had not been called. Her instructed to answer this question, and did answer Majesty's Government consider the provisions of it, as follows: " That any provision in the treaty by the act as having been devised, not in the particular which the fugitive surrendered for one offense interests or for the particular ends of Great Britain, mentioned in the schedule may be tried for any but as the embodiment of what was the general offense committed prior to his extradition, other opinion of all countries on the subject of extradi- th the extradition crime for which he was surtion, and as being beneficial to all and injurious to rendered, would be inadmissible.” Foreign Rela

That the general opinion of European na- tions of the United States, 1876, p. 228. tions has justified this view is proved by the ac- The “schedule” here referred to is a part of the ceptance, by most of the leading nations of Europe, act of 1870, containing a list of extradition crimes, of extradition treaties based on its provisions.” including those in the then existing treaties of Foreign Relations of the United States, 1876, p. Great Britain, which must not be exceeded in the 228.

negotiation of other treaties. Parliament chose by Mr. Clarke, in an Appendix to his treatise on Ex- law to make a list of such crimes, and thereby limit tradition, sec. ed., gives the full text of the extra- the treaty power. dition treaties of Great Britain, since 1870, with The correspondence between Sir E. Thornton and Germany, Belgium, Italy, Denmark, Austria, Sweden Secretary Fish, immediately after the passage of and Norway, and Brazil, every one of which ex- the English act, and the subsequent correspondence pressly recognizes the principle that an extradited between them in relation to a new treaty, show that party is triable only for the crime or crimes in re- the position taken by the British Government in respect to which his surrender was made. The seventh gard to Winslow was not an idea extemporized for article of the treaty with Germany provides as fol- that occasion, and hitherto unknown to the United lows: "A person surrendered can in no case be kept | States. The course which the former, by a mistake, in prison or brought to trial in the State to which supposed that the latter meant to pursue with referthe surrender has been made for any crime or on ac- ence to Lawrence, raised the question in regard to count of any other matters than those for which the Winslciv whether, in the event of his surrender, a extradition shall have taken place. This stipulation similar course might not be adopted in respect to does not apply to crimes committed after the extra- him. A guaranty against such a course, as expressly dition." So, also, the sixth article of the treaty provided for in the English act, and, as claimed by with Belgium provides thus: “When any person Lord Derby, virtually involved in the treaty of 1842, shall have been surrendered by either of the high was hence required before making the delivery.

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Secretary Fish declined to give any guaranty as to law existing in England, or in any British possesthe trial of Winslow; and thus the whole question, sion (as the case may be), of the date of the alas to the construction of the treaty and the applica- leged crime, whether by common law or by statute tion of the English act thereto, was opened for dip- made before or after the passage of this act.” The lomatic discussion.

theory of this provision is, that the law, as it was This discussion was continued until the early part when the crime was committed, shall fix its characof July, 1876; and in the meantime the President, ter, and hence that no subsequent legislation, giving on the 20th of June, informed Congress that, if the to the act a new and different character, shall be British Government maintained its position, he operative in that particular case. should not, unless specially requested to do so by Now, from the list of crimes triable under the Congress, take any farther" action either in making special jurisdiction secured by extradition, the stator granting requisitions for the surrender of fugitive ute excludes all offenses “committed prior to the criminals under the treaty of 1842.” On the 27th surrender in any part of Her Majesty's dominions," of the following October, Sir E. Thornton informed and all offenses not "proved by the facts on which Secretary Fish that Her Majesty's Government had the surrender is grounded,” until the extradited determined, as a temporary measure until a new party “has been restored or had an opportunity of extradition treaty can be concluded," and without returning to said foreign State.” This provides abandoning its construction of the treaty of 1842, that, before he can be tried for any but the extradito recede from the demand of a formal guaranty in tion crime or crimes, he must by the British Govrespect to the trial of an extradited person; and, ernment have been restored to the country from on the 22nd of the next December, the President which he was removed, or must have had an opporcommunicated this fact to Congress, and declared tunity of returning thither by the withdrawal for a his purpose to regard the treaty as still operative, reasonable time of all restraint upon his liberty. and in the future to make and grant requisitions for the implication is that, if being thus restored, be the surrender of fugitive criminals under it. Thus chooses, of his own accord, to return to the jurisdicthe controversy came to an end, leaving the question tion of the British Government, or that if not being in such a form that, although the Government of restored, but having the opportunity of return to the the United States is not required to give a positive foreign State from which he was removed, he chooses pledge as to the trial of an extradited party, con- not to do so, but to remain under the jurisdiction siderations of prudence and international courtesy acquired by the removal, then, in either case, he may clearly suggest that the British view on this subject be tried for an offense committed prior to the surshould not be practically disregarded.

render, and not included in the terms thereof. The In the course of the discussion between the two immunity against trial for any but the extradition governments, three of the provisions of the Eng- charge is limited by these qualifications. Moreover, lish Extradition Act, and especially two of them, if the party shall, after his surrender, commit a came under consideration; and these we now pro- crime or crimes in any part of Her Majesty's doceed to examine:

minions, either while in custody or after his dis1. The nineteenth section of the act contains charge, then no immunity whatever, as to trial one of these provisions, and reads as follows: therefor, is secured to him. His case, upon this

“ Where, in pursuance of any arrangement with supposition, would be similar to that of any other a foreign State, any person accused or convicted of offender. any crime which, if committed in England, would

The obvious design of the statute is to confine be one of the crimes described in the first schedule to this act, is surrendered by that foreign State, such

the jurisdiction gained by extradition to the speperson shall not, until he has been restored or bad cific purpose set forth in the proceedings when an opportunity of returning to such foreign State, gaining it. The rule laid down to this end is that be triable or tried for any offense committed prior the triable crime, subject to the qualifications above to the surrender in any part of Her Majesty's dominions, other than such of the said crimes as may stated, must be such “ as may be proved by the be proved by the facts on which the surrender is facts on which the surrender is grounded.” This grounded.”

assumes that these “facts,” supported by the proper The party in relation to whom this statute oper- evidence, were submitted to the government asked ates is represented as having been surrendered “in to make the delivery; that, in its judgment, they pursuance of any arrangement with a foreign State," sufficiently established the commission of the crime and as having been “accused or convicted of any or crimes for which the extradition was sought, and crime which, if committed in England, would be that on this ground the delivery was made in purone of the crimes described in the first schedule to suance of a treaty. The crime, thus shown by the this act.” This language distinctly designates the " facts” brought out in the extradition proceedperson to whom the statute refers.

ings, is the only one for which the party can be The schedule provides that the crimes, therein put on trial under British authority,“ until he has mentioned, shall “be construed according to the been restored or had an opportunity of returning to such foreign State," unless he shall commit some The practical end, sought by this clause of the other crime after his extradition. This does not English act, is to limit the jurisdiction over a fupreclude additional evidence, besides that on which gitive criminal when surrendered by Great Britain he was surrendered, in proof of the crime when he to a foreign State to "the extradition crime proved is brought to trial; but it does preclude a trial for by the facts on which the surrender is grounded." any other crime until one of the specified condi- This description of the crime assumes that it comes tions of such trial shall be supplied, or the party,

within the enumeration of the treaty; that the forafter extradition, shall bave committed some other eign State has charged the crime upon a given crime.

person; that, as a basis for his surrender, proof of The British Government, by this part of the Eng- his guilt has been furnished; and that the British lish act, concedes and means to concede to other Government, having examined the case, has judged governments precisely what it expects and demands the evidence sufficient to justify the surrender, in from them. There can be no pretense that the order that the party accused may, in the foreign statute is in conflict with their rights, as growing State demanding him, be put on trial for the crime, out of extradition treaties. It simply limits the and that only, which was proved by the facts on jurisdiction of British courts to the offense or of- which the surrender was grounded. The theory of fenses on the charge and proof of which extradi- | the provision is that this, and this only, is the crime tion was claimed and granted, and thus protects for the trial of which the surrender was made, and the extradited party against any abuses of power hence that the jurisdiction granted thereby is limby these courts. Such a case as that of Heilbronn, ited to this purpose. to which Secretary Fish referred, could not occur The method of gaining this end, as provided for under this statute.

in the clause, is to forbid the surrender of a fugi2. A second provision, found in the second sub- tive criminal “ to a foreign State unless provision is section of the third section of the English act, made by the law of that State, or by arrangement, reads as follows:

that the fugitive criminal shall not, until he has “A fugitive criminal shall not be surrendered to been restored or had an opportunity of returning to a foreign State unless provision is made by the law Her Majesty's dominions, be detained or tried in of that State, or by an arrangement, that the fugi- that foreign State for any offense committed prior tive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's to his surrender, other than the extradition crime dominions, be detained or tried in that foreign proved by the facts on which the surrender is State for any offense committed prior to his surren- grounded.” Parliament chose in this way to secure der, other than the extradition crime proved by the facts on which the surrender is grounded.”

a guaranty beforehand, that the jurisdiction, given Lord Derby, in his letter to General Schenck, im- / by surrender on the part of Great Britain, would be

confined to the purpose for which it was given. mediately after the demand for Winslow was made,

It is true that the treaty of 1842 between the two 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 exe

governments does not, in express terms, contain any the 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 ex

this enumeration. The treaty still further provides isting with Her Majesty's Government in this re

that, in every case of actual delivery, the crime or spect, and the interpretation put upon the act of

crimes for which the surrender is demanded 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 practi

that 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 either before or after the passage of this act), in virtue of the custody secured thereby. There is no

the case of the foreign States with which thoso

treaties were made, in the same manner as if an Orright of demand, and no obligation of delivery, in violation of the terms from which these implications

der in Council referring to such treaties had been

made in pursuance of this act, and as if such Order arise. A special and limited jurisdiction over the had directed that every law and ordinance which is extradited party is, by the terms and necessary im- in force in any British possession with respect to plications of the treaty, the only jurisdiction that

such treaties should have effect as part of this act:

Provided that if any proceedings for or in relation can be gained under it in respect to any crime or to the surrender of a fugitive criminal have been cause of detention that antedates his surrender; and commenced under the said acts previously to the this jurisdiction relates to the offense or offenses for repeal thereof, such proceedings may be completed, which he was surrendered.

and the fugitive surrendered, in the same manner

as if this act had not been passed.” What we then find in this clause of the English act is an express statement, in the form of a legal

There are four provisions in this section. The statute for the government of British officers, of the

first is a repeal of the acts named in the third implied doctrine of the treaty of 1842 in respect to

schedule to the act of 1870. The second is the apthe crime for which the party surrendered under

plication of this act to the extradition treaties rethe treaty may be tried. The act denies no right

ferred to in the acts repealed. The third is an exwbich the treaty grants. It is not an attempt to

ception in this application as to any thing in the act supplement the treaty with provisions in contradic-inconsistent with those treaties. The fourth is the tion of or inconsistent with its terms. It adds

permission, where extradition proceedings have nothing to the treaty. It claims no authority or

been commenced in any case, that they should be operation in or over the United States, or over any

completed “in the same manner as if this act had of the judicial or executive officers thereof. It sim

not been passed.” ply asserts a British right under the treaty, and pro

The acts named in the schedule are five, and the vides for securing it. There is no occasion for the

treaties referred to in them are those with the United United States to find fault with it, unless it is pro

States, France, and Denmark. Secretary Fish posed to go beyond the treaty in dealing with an

claimed that the treaty of 1842 with the United extradited person; and then the occasion for fault-States, as to the matter under discussion between finding would be with Great Britain.

the two governments, comes within the exception The question as to when this treaty right shall be specified in this section of the act of 1870, because, asserted, whether before delivery and as a condition

as to that matter, the act is inconsistent with the thereof, or afterward in the form of a protest if

treaty, and, hence, that in this respect it has no apthere be an attempt to disregard it, is quite imma- plication to the treaty. Lord Derby, on the other terial, so far as the right itself is concerned. If it

hand, denied these propositions, and insisted that exists at all, then its recognition may be made

the English act of 1870 and the treaty of 1842 are condition of delivery, or it may be asserted by pro

not in conflict with each other, that the express doctest in the event of its violation. If Great Britain

trine of the act in regard to the trial of extradited under the treaty has the right to protest against

criminals is implied in the treaty, and, hence, that trial for any but the extradition offense, then it has

on this subject, which was the only point in controan equal right to refuse a surrender without an ade

versy between them, there is nothing in the act to

. quate guaranty in this respect. The right of pro- except the treaty from its application.

It would be unreasonable to suppose that the test and the right of refusal rest on precisely the

British Parliament, consciously, and by intention, same principle. No government, in the execution of a treaty, is bound to consent in advance to what passed an act for the execution of extradition treatwould be a violation of it, or omit such legislation ies, which it deemed in any particular inconsistent

with these treaties, and at the same time adopted as will secure its own rights as involved in the treaty. It has the right to insist upon its own

an exception in general terms to avoid a result for

which it had deliberately provided, or that it meant rights; and this we understand to be the purpose of

to repeal or change the treaties when professing to the English act in relation to the detention and trial of persons who, as fugitive criminals, may by the legislate for their execution. The exception as to British Government be surrendered to foreign States.

the application of the act is evidently a general 3. A third provision of the English act, contained provision of caution, for the purpose of being sure in its twenty-seventh section, reads as follows:

not to legislate in contradiction of existing treaties,

and not a confession on the part of Parliament that "The acts specified in the third schedule to this it had so legislated in respect to any treaty. The act are hereby repealed as to the whole of Her exception is stated with no specific mention of any Majesty's dominions; and this act (with the exception of any thing contained in it which is inconsist

treaty, or of any provision in any treaty. To asent with the treaties referred to in the acts so re

sume that Parliament designed, as to the matter in pealed) shall apply (as regards crimes committed I debate, to except the treaty of 1842 with the United

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