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the agent, with authority to dispose of it, carried with which is cited in support of it, holds that when a it the presumption that he was authorized to dispose conductor has ejected a person from a train for a of it upon any terms not unusual, that the notice in refusal to pay fare, he is not bound to let him ride the agreement limiting his authority did not not do if he again enters the train and offers to pay fare. so, inasmuch as the agreement was on its face not | The court there say: "After being rightfully excomplete, but contained blanks that might be filled pelled from the train, he could not again enter the out with such a contract as the woman understood same cars and require the defendant to perform the she had made, and that, as making the paper con-contract he had broken." But in the principal case, clusive evidence of the contract would sanction the by the sale of the second ticket, defendant made a perpetration of fraud upon the woman, parol evi- | new contract with plaintiff to carry him on any dence was admissible to show the true circumstances, train that plaintiff should elect. The court say and a judgment against the company was affirmed that he was entitled to ride on any other train than The Supreme Court of Minnesota in Domestic Sew- the one he had been ejected from. We cannot see ing Machine Co. v. Anderson, 15 Alb. L. J. 64, dis- any good reason for excepting that one, if the deposes of a similar case by holding that the contract fendant, when selling plaintiff the ticket, did not of sale being perfected before the lease, as it is do so. called, is executed, the latter instrument is invalid for want of consideration.
In the case of Pettis v. Johnson, recently decided
by the Supreme Court of Indiana, it is held that a In Stone v. C. N. W. R. R. Co., decided by the municipal corporation has no power to authorize the Supreme Court of Iowa at the October (1877) Term, owner of a lot to erect a stairway extending into a plaintiff purchased of defendant, at Clinton, a ticket public street or alley, that such a structure when to Sioux City, a station on another railroad. The extending into the street is a purpresture, and is ticket contained two coupons, one for use on de- per se a nuisance, and that, therefore, a person canfendant's railroad, and the other for use on the other not gain by prescription the right to continue it. one. Plaintiff entered one of defendant's trains, That any encroachment upon the public highway is and presented his ticket to the conductor, who & nuisance, and abatable as such, is sustained by punched it to indicate that it had been used, and numerous cases. It is not enough that the public gave plaintiff a conductor's check. Before plaintiff have sufficient space left for the necessary uses of reached the point where he was to leave defendant's the highway. They are entitled to the entire space road, he left the train, and afterward took another set apart for that purpose. In Regina v. Un. King. train from the same place to continue his journey. Tel. Co., 31 L. J. 167, where telegraph posts on the He presented the conductor's check and punched outer edge of a highway were held nuisances, the ticket to the conductor on the second train, who re-court say: “It is enough that the posts stand in the fused to receive them for fare, and ejected plaintiff way of those who may choose to go there.” See, at a station where the train stopped. Plaintiff then also, King v. Wright, 3 B. & Ad 681, where it is said: purchased a ticket at that station, and entered the “I am strongly of opinion when I see a space of fifty same train, but the conductor refused to permit him or sixty feet, through which a road passes between to ride unless he paid his fare from the place where inclosures set out under act of Parliament, that he had originally entered the train to the station unless the contrary be shown, the public are entitled where he had purchased his ticket, and again ejected to the whole of that space, although from motives him. The court held that the conductor was justi- of economy, perhaps, the whole of it has not been fied in ejecting plaintiff from the train in the first kept in repair.” Also, Rex v. Lord Grosvenor, 2 instance, and was also justified in refusing to let Starkw. 511; Queen v. Betts, 16 Q. B. 1022, where him ride on the train after he had procured a ticket it is held that "any permanent or habitual obstrucat the station where he was put off. The first propo- tion in a public street or highway is an indictable sition is supported by many authorities, being in nuisance, although there be room enough left for accordance with the rule that when a passenger who carriages to pass." Chamberlain V. Enfield, 43 N. has purchased a ticket has elected the train upon H. 356; People v. Cunningham, 1 Den. 542; Davis which he is to proceed to his destination, he can. v. Mayor, etc., 14 N. Y. 524; Rex v. Jones, 3 Campb. not leave that train after it has commenced its 230; Dickey v. Maine Tel. Co., 46 Me. 483; Wright journey, and enter a subsequent one without again v. Saunders, 65 Barb. 214; Commonwealth v. King, paying fare. Hamilton v. N. Y. O. R. R. Co., 51 | 13 Metc. 115. The rule that there can be no preN. Y. 100; McClure v. P. W. and B. R. R. Co., 34 scription for a public nuisance is well established. Md. 532; 6 Am. Rep. 345; Dietrich v. Penn. R. R. | Mills v. Hall, 9 Wend. 315; Rhodes v. Whitehead, 27 Co., 71 Penn. St. 432; 10 Am. Rep. 711; Cheney v. Tex. 304; Regina v. Brewster, 8 Up. Can. (C. B.) 208; B. & M. R. R. Co., 11 Metc. 131. The latter propo- | Taylor v. People, 6 Park. Cr. 363; Commonwealth v. sition does not seem to be as well sustained. The Upton, 6 Gray, 475. See, further, Wood on Nuicase of O'Brien v. B. & W. R. R. Co., 15 Gray, 20, 1 sances, 744.
may have been the guilt of Arguelles, the act sinks INTERNATIONAL EXTRADITION.
to the level of official kidnapping. BY SAMUEL T. SPEAR, D. D.
Mr. Wheaton, in his Elements of International IN 1864 the Captain-General of Cuba, through the
Law (Lawrence's edition, 1863), p. 232, mentions 1 Spanish minister at Washington, requested Sec
Grotius, Heineccius, Burlamaqui, Vattel, Rutherretary Seward to order the delivery of one Arguelles,
forth, Schmelzing and Kent, as holding “that, ac
cording to the law and usage of nations, every sora Spaniard, who had been governor of a district in
ereign State is obliged to refuse an asylum to indi. Cuba, and, in the request, was charged with a gross violation of the laws of Spain in respect to the slave
viduals accused of crimes affecting the general
peace and security of society, and whose extradition trade, and, as alleged, had fled to New York with a large sum of money obtained as the fruit of his
is demanded by the government of that country
within whose jurisdiction the crime has been comcrime. Secretary Seward, under the sanction of
mitted.” He also names Puffendorf, Voet, Martens, the President, ordered the arrest and delivery, as an
Kluber, Leyser, Kluit, Saalfield, Schmaltz, Mitteract of executive power, without any treaty with Spain providing for it, and without any law of the
meyer and Heffter as maintaining that “the extra
dition of fugitives from justice is a matter of imUnited States giving the authority. Arguelles was
perfect obligation only, and, though it may be arrested and so summarily taken out of the country that there was no opportunity to interpose any ju
babitually practiced by certain States as the result dicial process for his relief.
of mutual comity and convenience, requires to be The Senate of the United States requested the
confirmed and regulated by special compact, in orPresident to inform the Senate whether such a
der to give it the force of an international law.” It delivery had been made, and, if so, under what
is, perhaps, sufficient to say in regard to these authority of law or treaty it was done. The Presi
authorities, all of whom are foreigners with the exdent, in his reply, transmitted a report from Secre
ception of Kent, that their conflict of opinion shows tary Seward, in which the latter said:
that the principle of extradition, viewed irrespect
ively of treaty stipulations, has never been so es“There being no treaty between the United States
tablished in the practice of European nations as to and Spain, nor any act of Congress directing how fugitives from justice in Spanish dominions shall be
entitle it to be regarded as an international law. delivered, the extradition in the case referred to in These nations in modern times dispose of the questhe resolution of the Senate is understood by this tion by treaties; and this shows that, whatever may department to have been made in virtue of the law
have been their earlier practice, they do not now of nations and the Constitution of the United States. Although there is a conflict of authorities concern
recognize any obligation to surrender fugitive crimiing the expediency of exercising comity toward a | nals to one another, except as the same is provided foreign government by surrendering at its request for in this way. We, hence, conclude, without one of its own subjects charged with the commis going into a lengthy discussion of this point, that sion of crime within its territory, and although it may be conceded that there is no national obliga
there is not now in Europe, if there ever were, any tion to make such a surrender, unless it is acknowl- |
international law of extradition beyond that which edged by treaty, or by statute-law, yet a nation is ! treaties create and prescribe. If there were, it never bound to furnish asylum to dangerous crimi
would not be operative in and binding upon the nals who are offenders against the human race; and it is believed that, if in any case the comity could
United States, except as the Government thereof with propriety be practiced, the one which is under- | may have seen fit to adopt it. stood to have called forth the resolution furnished As a matter of fact, it is not and never has been a just occasion for its exercise." McPherson's His- the practice of the United States Government either tory of the Rebellion, p. 355.
to demand or surrender fugitive criminals, except Whether this procedure is to be justified depends where the right has been secured and the obligation upon the question whether it rested on any legal | imposed by treaty. The general usage of the counauthority. There being no such authority, either try gives no support to the theory of extradition on by treaty or by any law of Congress, reference was the ground of either comity or international law. made to “the law of nations and the Constitution It rather contradicts and excludes such a theory. of the United States," as the basis of the proced- In 1873 the Belgian Minister requested the Uniure. There is not a syllable in the Constitution | ted States to deliver up Carl Vogt, in the absence that, independently of treaty stipulations, has the of any treaty of extradition with Belgium. To this remotest relation to the extradition of fugitives request Mr. Bancroft Davis, the then Acting Secrecharged with the commission of crime in other tary of State, replied as follows: “The authority of countries. Was the act authorized by “the law of the Executive to abridge personal liberty within the nations," as acknowledged and accepted by the jurisdiction of the United States, and to surrender United States? If not, then it was absolutely with a fugitive from justice, in order that he may be out any legal authority; and if so, then, whatever I taken from their jurisdiction, is derived from the statutes of Congress, which confer that power only as the lesser evil. When the consular conventiou in cases where the United States are bound by | with France was under consideration, this subject treaty to surrender such fugitives, and have a re-was attended to; but we would agree to go no furciprocal right to claim similar surrender from an- | ther than is done in the ninth article of that instruother power. I am, therefore, constrained to decline ment, where we agree mutually to deliver up capto comply with your request for the surrender of tains, marines, sailors, and all other persons being Carl Vogt.” Foreign Relations of the United part of the crew of the vessels, etc. Unless, tliereStates, 1873, Vol. I, p. 81.
fore, the persons before named be a part of the crew The extradition provision in the treaty of 1794 of some French vessel, no power in this country is with Great Britain was limited to the period of authorized to deliver them up; but, on the contrary, twelve years, and hence, after 1806, it ceased to be they are under the protection of the laws." Amerioperative, and no similar stipulation was entered can State Papers, vol. 1, p. 175. into until the ratification of the Ashburton treaty In 1791 Governor Pinckney, of South Carolina, of 1842. An application was, however, made in 1840 requested President Washington to demand of the to the President, requesting the delivery of George Governor of Florida the surrender of certain perHolmes, a naturalized citizen of the United States, sons who, having committed offenses in South charged with having committed murder in Lower Carolina, had taken refuge in Florida. The quesCanada. The President declined to comply with tion was referred to Mr. Jefferson, who was then the request, assigning as the reason that, in the ab- Secretary of State; and in his letter to the Presisence of a treaty, he had no power to order the dent, of November 7th, 1791, he said: “England delivery. Holmes being then in Vermont, an appli | has no convention with any nation for the surrencation was made to the governor of that State, who | der of fugitives from justice, and their laws have issued his warrant of arrest; and Holmes, being in given no power to the executive to surrender fugithe custody of the sheriff, applied to the Supreme tives of any description. They are, accordingly, Court of Vermont for a writ of habeas corpus, to test constantly refused, and hence England has been the the legality of his imprisonment. The court granted asylum of the Paolis, the La Mottes, the Calonnis, the writ, and, after hearing the case, held that he in short, of the most atrocious offenders as well as was lawfully restrained of his liberty. A writ of of the most innocent victims who have been able to error was then taken to the Supreme Court of the get there. The laws of the United States, like those United States; and, the court being equally divided of England, receive every fugitive, and no authority on the question of jurisdiction over the case, the has been given to our executives to deliver them up. writ was dismissed. Four of the judges expressed If, then, the United States could not deliver up to the opinion that “the power to surrender fugitives General Quesnada fugitives from the laws of his wlio, having committed offenses in a foreign coun country, we cannot claim as a right the delivery of try, have fled to this for shelter, belongs, under the fugitives from us. And it is worthy of consideration Constitution of the United States, exclusively to the whether the demand proposed to be made in GovFederal Government, and that the authority exer- ernor Pinckney's letter, should it be complied with cised in this instance by the governor of Vermont is by the other party, might not commit us disagreerepugnant to the Constitution of the United States." ably, and perhaps dishonorably.” Clarke on ExtraThis led the Supreme Court of Vermont to review | dition, sec. ed., p. 34. its decision, and discharge Holmes on habeas corpus. A still earlier case, occurring in 1784, before the Holmes v. Jennison, 14 Pet. 540, and Ex parte Holmes, | adoption of the Constitution, was that of Chevalier 12 Vt. 631. A similar opinion, in The People er rel. de Longchamps, who was indicted in Philadelphia Francis C. Barlou v. Curtis, 50 N. Y. 321, was ex- for “threatening bodily barm to M, Marbois, the pressed by the Court of Appeals of New York. Consul-General of France in the United States, and
In 1793 Mr. Genet, the Minister of the French Secretary to the French Legation, and also for an Republic, made a request for the delivery of several assault upon him.” Having appeared in the unipersons who were citizens of France, to which Mr. | form of a French officer and called himself such, Jefferson, in his letter of September 12, 1793, thus the Minister of France demanded that he should be replied: “The laws of this country take no notice delivered up that he might be sent to France for of crimes committed out of their jurisdiction. The trial and punishment. The court before which the most atrocious offender, coming within their pale, indictment was brought, being informed of this deis received by them as an innocent man, and they mand, had two questions to decide. One was have authorized no one to seize or deliver him. The whether the prisoner could be lawfully delivered evil of protecting malefactors of every dye is sensi up, which was answered in the negative. The other bly felt here, as in other countries; but, until a was whether, if he could not be delivered up, he reformation of the criminal codes of most nations, could be imprisoned until the King of France should to deliver fugitives from them would be to become declare the reparation satisfactory; and this also was their accomplices. The former is viewed, therefore answered in the negative. Being convicted on both
counts of the indictment, he was punished by fine cumstances, afford to the foreign nation just cause and imprisonment under American laws but not for war.” The United States at the time had no surrendered to the French government. Respublica extradition treaty with Spain, and hence the whole v. Longchamps, 1 Dall. 120.
question was simply one of comity, which AttorneyThese cases show that the international surrender General Lee regarded as equivalent to an internaof fugitive criminals, except as provided for by tional obligation. He saw no way of discharging treaty, has no basis and no sanction in the usage of the duty in the then existing state of the law, and the United States. The usage, so far as there is hence suggested the expediency of enacting a law any, is to the contrary effect.
to remedy the difficulty. Congress, in 1848, passed its first law on this sub- Attorney-General Wirt, in Sullivan's Case, 1 Op. ject, which, being supplemented by the acts of June Att.-Gen., 509, in 1821 went into a thorough ex22nd, 1860, of March 3rd, 1869, and of June 19th, amination of the question; and the result to which 1876, constitutes the law of the United States in he came was stated as follows: “ The truth seems respect to international extradition. The only cases to be that this duty of delivering up criminals is so to which this law, by its express terms, is applica vague, is of so imperfect a nature as an obligation, ble, are those arising under treaties. The obvious is so inconveniently incumbered in practice by the implication is that there are no other cases of such | requisition that the party demanded shall have been extradition. The power to pass such a law rests convicted on full and judicial proof, or such proof upon that provision of the Constitution which au as may be called for by the nation on whom the thorizes Congress “to make all laws which shall be demand is made, and the usage to deliver or refuse. necessary and proper for carrying into execution” being perfectly at the option of each nation, has all powers vested in the Government of the United been so various, and consequently so uncertain in States, or in any department or officer thereof." | its action, that these causes combined have led to The treaty power given to the President, subject in the practice of providing by treaty for all cases in its exercise to the advice and consent of the Senate, which a nation wishes to give herself a right to call is one of these powers; and there can be no doubt for fugitives from her justice.” The demand in that it extends to treaties of extradition with foreign this case was made by Great Britain without any nations. This, as Attorney-General Cushing de extradition treaty, and the Attorney-General held clared in the case of a deserter from the Danish ship that there was no obligation to comply with it. He Sago, 6 Op. Att.-Gen., 155, is the source from which added the expression of an opinion that, even if Congress derives its authority to enact a law for the there were such an obligation under the law of nadelivery of criminal fugitives from other countries. tions,“ still the President has no power to make The framers of the Constitution seem to have re the delivery,” since he can derive this power only garded the whole question as being covered by the from treaties or from acts of Congress, neither of treaty power, and hence made no other provision in which then contained any provision giving him such regard to it. And if Congress be thus limited in authority. its power, what reasonable pretense can there be for In the Case of tro Portuguese Seamen, 2 Op. Att.the theory that the President, with no treaty and Gen., 559, whose delivery was requested by the King no law giving him the authority, has the power to of Portugal, Attorney-General Taney said: “There order the arrest and delivery of a fugitive criminal is no law of Congress which authorizes the Presifrom another country?
dent to deliver up any one found in the United The Attorney-Generals of the United States have | States, who is charged with having committed a been frequently called upon to express their official crime against a foreign nation; and we have no opinions on various points connected with interna- | treaty stipulations with Portugal for the delivery of tional extradition. One of the earliest of these | offenders. In such a state of things it has always opinions was given by Attorney-General Lee in 1797, been held that the President possesses no authority in the case of William Jones, 1 Op. Att.-Gen., 68, in to deliver up the offender.” So, also, in reference which he said: “If a demand were formally made to the Application of Chevalier Huygens, 2 Opp. Att.that William Jones, a subject and fugitive from Gen., 452, he said: “As there is no stipulation by justice, or any of our own citizens, heinous offend treaty between the two governments for the mutual ers within the dominion of Spain, should be de surrender of fugitives from justice, I think the livered to their government for trial and punish President would not be justified in directing the ment, the United States are in duty bound to com- | surrender of the person on whom a part of the ply; yet, having omitted to make a law directing stolen articles may have been found, in order that the mode of proceeding, I know not how, accord he may be brought to trial in the country where he mg to the present system, a delivery of such of- | is supposed to have committed the robbery." fender could be effected. To refuse or neglect to In De Witt's Case, 3 Op. Att.-Gen., 661, Attorneycomply with such a demand may, under certain cir- General Legaré said: “The President is not considered as authorized, in the absence of any express | expressed in his Commentaries, third edition, vol. 1, provision by treaty, to order the delivering up of p. 36. fugitives from justice.”
Chancellor Kent is very high authority; yet the In Wing's Case, 6 Op. Att.-Gen., 85, Attorney- doctrine here stated is not supported, but rather General Cushing, after referring to the cases for ex- expressly contradicted by the judiciary of the countradition specified in the treaty of 1842 with Great try. In The Commonwealth v. Deacon, 10 Serg. & Britain, and remarking, that larceny, the offense Rawle, 125, Chief Justice Tilghman, of the Supreme charged against Wing, was not embraced in the Court of Pennsylvania, had occasion, in 1823, to list, proceeded to say: “It is, therefore, in these consider this subject; and after an elaborate review cases only that, by treaty, either government can of the opinions of respectable authors, the practice claim the extradition of fugitives taking refuge in of nations and judicial decisions,” he came to the the dominions of the other. It is the settled politic following conclusion: “Upon the whole, the doctrine of the United States that, independently of safest principle seems to be that no State has an special compact, no State is bound to deliver up absolute and perfect right to demand of another fugitives from the justice of another State. * * * the delivery of a fugitive criminal, though it has I am, therefore, of opinion that to grant the present what is called an imperfect right, that is, a right to application would be contrary to true doctrines of ask it as a matter of courtesy, good will and mutual international law.” So, also, in Hamilton's Case, 6 convenience. But a refusal to grant such request Op. Att.-Gen., 431, Attorney-General Cushing said: is no just cause of war.” The mere right to ask " It is the established rule of the United States, the delivery, which is the only right conceded by neither to grant nor to ask for extradition of crim- the chief justice, is really no right at all, since it inals, as between us and any foreign government, imposes no obligation. unless in cases for which stipulation is made by ex- In The United States v. Davis, 2 Sumn. 482, Juspress convention.”
tice Story, in stating the opinion of the court said, These opinions are very far from sustaining the in 1837: “ We are of opinion that, under the cirposition assumed by Secretary Seward in ordering cumstances established in evidence, there is no the surrender of Arguelles to the Spanish authorities, jurisdiction in this case." In answer to the suggesOnly one of them, that of Attorney-General Lee, tion of the district judge, that Davis should be regiven in 1797, claims that extradition, in the ab- | manded to the foreign government for trial, Justice sence of treaties, has any basis in the law of nations; | Story remarked: “That he had never known any and even he did not hold that the duty could be such authority exercised by our courts, except discharged by the executive department of the Gov where the case was provided for by the stipulations ernment, unless it was expressly empowered for this of some treaty. He had great doubts whether, purpose by the legislative action of Congress. upon principles of international law and independ
The question of international extradition has fre- ent of any statutable provisions or treaty stipulaquently come before the courts of this country; and, tions, any court of justice was either bound in duty, with a single exception, the opinions expressed are or authorized in its discretion, to send back any unanimous to the effect that there is no obligation offender to a foreign government whose laws he to surrender fugitive criminals, except as provided was supposed to have violated.” The district judge for by treaty stipulations. Chancellor Kent, In the assented to this view, and the prisoner was disMatter of Daniel Washburn, 4 Johns. Ch. 105, who charged. was charged with theft in Canada, and brought In the Case of Jose Ferreira Dos Santos, 2 Brock. before him on habeas corpus in 1819, expressed the 493, Judge Barbour, who was subsequently apfollowing opinion: “It is the law and usage of pointed as one of the justices of the Supreme Court nations, resting on the plainest principles of justice of the United States, remarked that the solution of and public utility, to deliver up offenders charged the question presented to the court depended upon with felony and other high crimes, and fleeing from that of two others: “1. Has a nation, whose citizen the country in which the crime was committed, into or subject commits a crime within its own jurisdica foreign and friendly jurisdiction. When a case of tion, and is afterward found within that of anthat kind occurs, it becomes the duty of the civil other, a right by the law of nations, upon its demagistrate, on due proof of the fact, to commit the mand, to have him delivered up by that other, for fugitive, to the end that a reasonable time may be the purpose of being tried where the crime was afforded for the Government here to deliver him committed? 2. If such right exists, have the judiup, or for the foreign government to make the re- cial officers of the United States, supposing the quisite application to the proper authorities for his evidence to be sufficient, any authority to act in surrender. * * * Whether such offender be a relation to it as auxiliary to the executive departsubject of the foreign government, or a citizen of ment?" Both of these questions were considered at this country, would make no difference in the ap- large, and both answered in the negative. Judge plication of the principle.” A similar opinion is | Barbour, in the conclusion of his deliverance, said: