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Is, then, property which consists in the promise of a of an assessment of State bonds belonging to the bank, State, or of a municipality of a State, beyond the but deposited with the auditor of State as security reach of taxation ? We do not affirm that it is. A for the circulating notes of the company. The tax State may undoubtedly tax any of its creditors within thus assessed having been carried into the duplicate, its jurisdiction for the debt due to him, and regulate the collector seized and appropriated the bank notes the amount of the tax by the rate of interest the debt and money of the bank, and suit was brought to rebears, if its promise be left unchanged. A tax thus cover the amount so taken. In sustaining a demurrer Jaid impairs no obligation assumed. It leaves the con- to the petition the court held, it is true, that a tract untouched. But until payment of the debt or State has power to tax its own bonds equally with interest has been made, as stipulated, we think no act other property, and that the exercise of such a power of State sovereignty can work an exoneration from involves no violation of a coutract. But it was not what has been promised to the creditor, namely, pay, held that the State could collect the tax by withholdment to him, without a violation of the Constitution. ing from the creditor any part of what the State had "The true rule of every case of property founded on assumed to pay. The tax was laid, not upon the debt, contract with the government is this: It must first but upon the creditor, and it was collected, not out of be reduced into possession, and then it will become what the State owed, but out of the general property subject in common with other similar property to the of the bank. Neither by the assessment nor in the right of the government to raise contributions upon collection was there any interference with the conit. It may be said that the government may fulfill tract. In The People v. The Home Insurance Company this principle by paying the interest with one band the question was whether bonds of the State of Caliand taking back the amount of the tax with the other. | fornia, belonging to a New York insurance company, But to this the answer is, that to comply truly with but deposited and kept in the State, as required by an the rule the tax must be upon all the money of the act to tax and regulate foreign insurance companies community, not upon the particular portion of it doing business in the State, were assessable for taxawhich is paid to the public creditors, and it ought to
tion there. It was ruled that they were. This case, be so regulated as not to include a lien upon the fund. no more than the former, meets the question we have The creditor should be no otherwise acted upon thar. before us. It certainly does not hold that a State or a as any other possessor of moneys, and consequently | city by virtue of its taxing power can convert its unthe money he receives from the public can thus only dertaking to pay a debt bearing six per cent interest be a fit subject of taxation when it is entirely separa- into one bearing only four. ted” (froin the contract)" and thrown undistinguished
These are the only cases cited to us as directly susinto the common mass."-3 Hamilton Works, 514 et taining the judgment we have now in view. How far seq. Thus only can contracts with the State be al- short of sustaining it they are must be apparent. And lowed to have the same meaning as all other similar we know of none that are more in point. It seems incontracts have.
credible that there can be any, for as we said in State Such limitations of the power of State taxation we
Tax v. Pennsylvania, 15 Wall. 320, “ the law which rehave heretofore recognized. We have held property quires the treasurer of the company (indebted) to rein one stage of its ownership not to be taxable and in tain five per cent of the interest due to the non-resi. a succeeding stage to be taxable. Those decisions are dent bondholder is not * * * a legitimate exercise of not without some analogy to the rule we bave men- the taxing power. It is a law which interferes between tioned. Thus, in Brown v. Maryland, 12 Wheaton, the company and the bondholder, and under the pre419-441, where it was held that a State tax could not tense of levying a tax commands the company to bo levied, by the requisition of a license, upon impor
withhold a portion of the stipulated interest and pay ters of merchandise by the bale or package, or upon it over to the State. It is a law which thus impairs the other persons selling the goods imported by the bale obligation of the contract between the parties. The or package, Marshall, C. J., considering both the pro- obligation of a contract depends upon its terms and the hibition upon States against taxing imports and their means which the law in existence at the time affords general power to tax persons and property, said: for its enforcement. A law which alters the terms of " Where the importer has so acted upon the thing im- a contract by imposing new conditions, or dispensing ported that it has become incorporated and mixed up with those expressed, is a law which impairs its obliwith the mass of property in the country, it has, perhaps, gation, for such a law * * relieves the parties from lost its distinctive character as an import and has be- the moral duty of performing the original stipulations come subject to the taxing power of the State."-Vide, of the contract, and it prevents their legal euforcealso, Woodruff v. Parham, 8 Wall. 122; State Tax on ment.” What was thus said, it is true, was in a case Railway Gross Receipts, 15 id. 295. A tax on in- where the question was whether a tax thus imposed come derived from contracts, if it does not prevent upon a non-resident holder of bonds issued by a the receipt of the income, cannot be said to vary or company chartered by the State was warranted by the lessen the debtor's obligation imposed by the con- Constitution. But so far as it speaks of what tracts.
constitutes impairing contract obligation it is applicaIn opposition to the conclusion we have reached we ble in its fullest extent to all legislation affecting con are referred to the Champaign County Bank v. Smith, tracts, no matter who may be the parties. 7 Ohio State, 42, and People v. Home Ins. Co., 29 Cal. We do not care now to enter upon the consideration 533, in which it is said the power of a State to tax its of the question whether a State can tax a debt due by own bonds was sustained. We do not, however, regard one of its citizens or municipalities to a non-resident those cases as in conflict with the opinion we now hold; creditor, nor whether it has any jurisdiction orer such and if they were they would not control our judg- a creditor or over the credit he owns. Such a discusment when we are called upon to determine the mean- siop is not necessary, and it may be doubtful whether ing and extent of the Federal Constitution. In the the question is presented to us by this record. former it appeared that the tax collected was in virtue It is enough for the present case that we hold, as we
do, that no municipality of a State can by its own and pursuant to, the tenth article of the treaty conordinances, under the guise of taxation, relieve itself cluded August 9th, 1842, between the Kingdom of from performing to the letter all that it has expressly Great Britain and the United States of America. promised to its creditors.
The attorney for the Commonwealth caused two of There is no more important provision in the Federal the indictments for forgery to be dismissed. Hawes Constitution than the one which prohibits States from was regularly tried under each of the remaining two, passing laws impairing the obligation of contracts, and and in each case a judgment of acquittal was rendered it is one of the highest duties of this court to take care in his favor, upon a verdict of not guilty. the prohibition shall neither be evaded nor frittered After all this, however, the officers of Kenton county away. Complete effect must be given to it in all its continued to hold him in custody, and finally, on mospirit. The inviolability of contracts and the duty of tion of the attorney for the Commonwealth, one of performing them, as made, are foundations of all well the indictments for embezzlement was set down to be ordered society, and to prevent the removal or dis- tried on the 6th day of July, 1877. Further action was turbance of these foundations was one of the great postponed from time to time until the 21st of August, objects for which the Constitution was framed.
1877, when Hawes presented his affidavit, setting out The judgment of the Supreme Court of South Caro- all the facts attending his surrender, and the purposes lina is reversed, and the record is remitted with in- for which it was made, and moved the court to constructions to proceed in accordance with this opinion. tinue all the indictments then pending against him, Miller and Hunt, JJ., dissenting.
and to surrender him to the authorities of the United We are of opinion that the power of taxation found States, to be by them returned or permitted to return in the charter of the city of Charleston long before the to his domicile and asylum in the Dominion of Canada. contract was made which is here sued on, entered, like This motion was subsequently modified to the extent all other laws, into the contract and became a part of that the court was asked to set aside the returns of the it. In other words, the contract was made subject to sheriff ou the various bench warrants under which he this power of taxation by the city of Charleston as had been arrested, and to release him from custody. found in her charter from 1781 to the present time. The court, in effect, sustained this modified motion,
The imposition and collection of this tax cannot, and ordered “that the cases of the Commonwealth of therefore, impair the obligation of a contract which Kentucky v. Smith N. Hawes, for embezzlement, and was made subject to her right to exercise that power. for uttering forged instruments with intent, eto., bo We therefore dissent.
continued, and be not again placed on the docket for trial, and that said Hawes be not held in custody until the further order of this court."
From said order the Commonwealth has prosecuted TRIAL OF EXTRADITED CRIMINALS FOR OF
this appeal. It is not final in its nature, but under the FENSES NOT NAMED IN TREATY.
provisions of sections 335 and 337 of the Criminal Code
of Practice, it may nevertheless be reviewed by this KENTUCKY COURT OF APPEALS, APRIL 17, 1878.
It was the opinion of the learned judge (Jackson) COMMONWEALTH V. HAWES.
who presided in the court below, that the tenth article The right of one government to demand and receive from
of the treaty of 1842 impliedly prohibited the governanother the custody of an offender who has sought asylum upon its soil, depends upon the existence of ment of the United States and the Commonwealth of treaty stipulations between them, and in all cases is derived from and is measured and restricted by the pro
Kentucky from proceeding to try Hawes for any other visions, express and implied, of the treaty.
offense than one of those for which he had been extraA fugitive from justice was, under the provisions of the
dited, without first affording him an opportunity to extradition treaty of 1842, between this country and Great Britain, surrendered by the Canadian authorities return to Canada, and that he could not be lawfully to be tried in Kentucky upon an indictment for for
held in custody to answer a charge for which he could gery. Held, that he could not, while in the custody of the court, under such surrender, be tried upon an in- not be put upon trial. dictment for embezzlement.
The correctness of this opinion depends on the true
construction of the tenth article of the treaty, and the Kenton Criminal Court directing that the de
also on the solution of the question as to how far the fendaut, Smith N. Hawes, indicted for embezzlement,
judicial tribunals of the Federal and State governbe not held in custody, and that the case against him
ments are required to take coguizauce of, and in proper be not placed on the docket. The facts appear in the
cases to give effect to, treaty stipulations between our opinion.
own aud foreign governments. T. E. Moss and W. W. Cleary, for appellant.
Section 2, article 6 of the Federal Constitution, deJ. G. Carlisle and J. W. Stevenson, for appellee.
clares that: “ This Constitution, and the laws of the LINDSAY, C. J. Smith N. Hawes stood indicted in United States, made in pursuance thereof, and all the Kenton Criminal Court for uttering forged paper,
treaties made, or which shall be made, under the aufor embezzlement, and also upon four separate and dis
thority of the United States, shall be the supreme law tinct charges of forgery. He was found to be a resi- of the land, and the judges of every State shall be dent of the town of London, in the Dominion of Can- bound thereby, any thing in the Constitution or laws ada, and in February, 1877, was demanded by the of any State to the contrary notwithstanding." President of the United States, and surrendered by It will thus be seen that with us a public treaty is the Canadian authorities to answer three of said not merely a compact or bargain to be carried out by charges of forgery.
the executive and legislative departments of the genAs to the fourth charge, the evidence of his crimi- eral government, but a living law, operating upon and nality was not deemed sufficient, and that alleged of- biuding the judicial tribunals, State and Federal, and fense was omitted from the warrant of extradition,
these tribunals are under the same obligation to notice The demand and surrender were made in virtue of, and give it effect, as they are to notice and enforce the Constitution, and the laws of Congress made in pur- mentioned in the treaty is not prohibited in terms, suance thereof.
and that fact is regarded as of controlling importance “A treaty is in its nature a compact between two by those who hold to the view that Hawes was not nations, not a legislative act. It does not generally entitled to the immunity awarded him by the court effect of itself the object to be accomplished, especially below. But if the prohibition can be fairly implied so far as its object is infra-territorial, but is carried from the language and general scope of the treaty, coninto execution by the sovereign powers of the respect- sidered in connection with the purposes the contractive parties to the instrument. In the United States a ing parties had in view, and the nature of the subject different principle is established. Our Constitution about which they were treating, it is entitled to like declares a treaty to be the law of the land. It is con- respect, and will be as saoredly observed as though it sequently to be regarded in the courts of justice as was expressed in clear and unambiguous terms. equivalent to ap act of the Legislature whenever it op- Publio treaties are to be fairly interpreted, and the erates of itself, without the aid of any legislative pro- intention of the contracting parties to be ascertained vision." Foster v. Neilson, 2 Peters, 253, per Chief by the application of the same rules of construction, Justice Marshall.
and the same course of reasoning which we apply to When it is provided, by treaty, that certain acts the interpretation of private contracts. shall not be done, or that certain limitations or restric- By the enumeration of seven well-defined crimes tions shall not be disregarded or exceeded by the con- for which extradition may be had, the parties plainly tracting parties, the compact does not need to be supple- excluded the idea that demand might be made as matmented by legislative or executive action, to authorize ter of right for the surrender of a fugitive charged the courts of justice to decline to override these limi- with an offense not named in the enumeration, no tations, or to exceed the prescribed restrictions, for matter how revolting or wicked it may be. the palpable and all-sufficient reason, that to do so By providing the terms and conditions upon which would be not only to violate the public faith, but to a warrant for the arrest of the alleged fugitive may be transgress the “ supreme law of the land."
issued, and confining the duty of making the surrenA different rule seems to have been intimated in the der to cases in which the evidence of criminality is case of Caldwell (8 Blackford, C. C. Reports, 131), but sufficient, according to the laws of the place where the real decision rendered in that, as in the subsequent
such fugitive is found, to justify his commitment for case of Lawrence (13 Blackford, C. C. Reports, 295), trial, the right of the demanding government to dedeoided by the same judge, was, that extradition pro
cide finally as to the propriety of the demand, and as ceedings had pursuant to the treaty under considera- to the evidences of guilt, is as plainly excluded as if tion, do not by their nature secure to the person sur
that right had been denied by express language. rendered, immunity from prosecution for offenses It would scarcely be regarded an abuse of the rules other than the one upon which the surrender is made, of construction, from these manifest restrictions, Quand the intimation in Caldwell's case, that the judici- aided by extraneous considerations, to deduce the ary may leave it to the executive department to inter- conclusion that it was not contemplated by the confere to preserve and protect the good faith of the gov- tracting parties that an extradited prisoner should, ernment in a case like this, is at the most but a dictum. under any circumstances, be compelled to defend himThe tenth article of the treaty of 1842 is as follows:
self against a charge other than the one upon which he “It is agreed that the United States and Her Britan- is surrendered, much less against one for which his nic Majesty.shall, upon mutual requisitions by them, extradition could not be demanded. or their ministers, officers, or authorities, respectively The consequences to which the opposite view may made, deliver up to justice all persons, who, being lead, though by no means conclusive against it, are charged with the crime of murder or assault with in- nevertheless to receive due and proper weight. tent to commit murder, or piracy, or arson, or robbery, It would present a remarkable state of case to or forgery, or the utterance of forged paper, commit- have one government saying in substance to the ted within the jurisdiction of either, shall seek an other: “You cannot demand the surrender of a asylum, or shall be found within the territories of the person charged with embezzlement. My judges or other : Provided, that this shall only be done upon other magistrates have no right or authority, such evidence of criminality as, according to the laws upon such a demand, either to apprehend the perof the place where the fugitive or person so charged son so accused, or to inquire into the evidences of shall be found, would justify his apprehension and his criminality; and if they should assume to do so, commitment for trial, if the orime or offense had there and should find the evidence sufficient to sustain the been committed; and the respective judges and other charge, the proper executive authority could not lawmagistrates of the two governments shall have power, fully issue the warrant for his surrender. But you jurisdiction, and authority, upon complaint made un- may obviate this defect in the treaty by resting your der oath, to issue a warrant for the apprehension of demand upon the charge of forgery, and if you can the fugitive or person so charged, that he may be make out a prima facie case against the fugitive, you brought before such judges or other magistrates, re. may take him into custody, and then, without a breach spectively, to the end that the evidence of criminality of faith, and without violating either the letter or may be heard and considered; and if, on such hear-spirit of our treaty, compel him to go to trial upon the ing, the evidence be deemed sufficient to sustain the indictment for the non-extraditable offense of emcharge, it shall be the duty of the examining judge or bezzlement." magistrate to certify the same to the proper executive And if this indirect mode of securing the surrender authority, that a warrant may issue for the surrender of persons guilty of other than extraditable offenses of such fugitive."
may be resorted to, or if the demand, when made in It will be seen that the trial and punishment of the utmost good faith, to secure the custody of a the surrendered fugitive for crimes other than those criminal within the provisions of the treaty, can be
made available to bring him to justice for an offense for political offenses far more stable and effectual than for which he would not have been surrendered, then the public sentiment of the two countries. Experiwe do not very well see how either government could ence had taught them that in times of intestine strife complaiu if a lawfully extradited fugitive should be and civil commotions, the most enlightened public tried and convicted of a political offense. Prosecu- sentiment may become warped and perverted, just as tions for the crime of treason are no more provided it has taught that man is sometimes capable of comagainst by the treaty than prosecutions for the crime mitting the unnatural crime of parricide, although of embezzlement, or the offense of bribing a public such a crime seemed impossible to the great Athenian officer.
law-giver. Mr. Fish, in his letter of May 22, 1876, to Mr. Hoff- And this view was adhered to by Congress in 1818, man, in reference to the extradition of Winslow, at- when the general law providing for the surrender of tempts to meet this difficulty by saying that “neither persons charged with crime to the various governments the extradition clause in the treaty of 1794, nor in that with which we had treaty stipulations on that subject, of 1842, contains any reference to immunity for po
was passed. After setting out the necessary prelimilitical offenses, or to the protection of asylum for re- nary steps, it was provided by the 3d section of that ligious refugees. The public sentiment of both coun- act, “That it shall be lawful for the Secretary of State, tries made it unnecessary. Between the United States under his hand and seal of office, to order the person and Great Britain it was not supposed on either side 80 committed to be delivered to such person or persons that guarantees were required of each other against a as shall be authorized, in the name and on behalf of thing inherently impossible, any more than by the such foreign government, to be tried for the crime of laws of Solon was a punishment deemed necessary which such person shall be accused.” against the crime of parricide, which was beyond the
This, like the act of Parliament, declares the purpossibility of contemplation."
pose of the surrender to be that the alleged offender But President Tyler, under whose administration may "be tried for the crime of which such person shall the treaty of 1842 was concluded, evidently thought
be accused." that the guarantees of immunity to political refugees The maxim, expressio unius est exclusio alterius, may were to be implied from the treaty itself, and not left with propriety be applied to each of these acts, and to rest alone on the public sentiment of the two coun- read in the light of that maxim, they are persuasive at tries. In communicating the draft of the treaty to
least of the construction which, up to 1848, the two the Senate for its ratification, speaking of the subject contracting parties had placed on the tenth article of of extradition, he said:
the treaty. "The article on the subject, in the proposed treaty, The act of Congress is, in one view, more important is carefully confined to such offenses as all mankind than the British act of 1813. It does not rest alone on agree to regard as heinous and destructive of the se- the proper interpretation of a particular treaty, and curity of life and property. In this careful and spe- may be regarded as a legislative declaration of the cific enumeration of crimes, the object has been to ex- American idea of the fundamental or underlying princlude all political offenses, or criminal charges arising
ciples of the international practice of extradition. from wars or intestine commotions. Treason, mis
The ancient doctrine that a sovereigu State is bound prision of treason, libels, desertion from military sery- by the law of nations to deliver up persons charged ice, and other offenses of similar character, are ex
with, or convicted of, crimes committed in another cluded.”
country, upon the demand of the State whose laws This interpretation was cotemporaneous with the
they have violated, never did permanently obtain in treaty itself, and deserves the higher consideration,
the United States. It was supported by jurists of disfrom the fact that it was contained in a paper prepared
tinction, like Kent and Story, but the doctrine has by the then Secretary of State, Mr. Webster, who long prevailed with us that a foreign government has represented the government of the United States in
no right to demand the surrender of a violator of its the negotiations from which it resulted.
laws unless we are under obligations to make the surIt seems, also, that the extradition article of the render, in obedience to the stipulations of an existing treaty was understood in the same way by the British treaty. (Lawrence's Wheaton's on International Law, Parliament in 1843. The act of Parliament of that year, page 233, and authorities cited.) passed for the purpose of carrying it into effect, di- As said by Mr. Cushing, in the matter of Hamilton, rected that such persons as should thereafter be extra- a fugitive from the justice of the State of Indiana, dited to the United States should be delivered “to
“It is the established rule of the United States neither such person or persons as shall be authorized, in the to grant nor to ask for extradition of criminals as bename of the United States, to receive the person so
tween us and any foreign government, unless in cases committed, and to convey him to the United States, for which stipulation is made by express convention." to be tried for the crime of which such person shall be
(Opinions of Attorney-Generals, volume 6, page 431.) accused."
From the treatise of Mr. Clark on the subject of exThe precise purpose for which the fugitive is to be tradition, we feel authorized to infer that this is the surrendered is set out in exact and apt language, and English theory, but whether it is or not, that governthe act negatives, by necessary implication, the right ment certainly would not, in the absence of treaty here claimed, that the person surrendered may be stipulations, surrender fugitives to a government tried for an offense different from that for which he which, like ours, would refuse to reciprocate its acts of was extradited, and one for which his surrender could comity in that respect. not have been demanded.
The right of one government to demand and receive The American Executive in 1842, and the British from another the custody of an offender who has Parliament in 1843, seem to have been impressed with sought asylum upon its soil, depends upon the existthe conviction that the treaty secured to persons sur- ence of treaty stipulations between them, and in all rendered under its provisions an immunity from trial cases is derived from, and is measured and restricted by, the provisions, express and implied, of the treaty. seemingly, for the reason that in Great Britain treaties The fugitive Hawes, by becoming an inhabitant of are regarded as international compacts, with which in the Dominion of Canada, placed himself under the
general the courts have no concern. They are to be protection of British laws, and we could demand his
carried into effect by the Executive, and the proceedsurrender only in virtue of our treaty with that gov- ings in the courts are subject to executive control to ernment, and we held him in custody for the purposes
the extent necessary to enable it to prevent a breach of contemplated by that treaty, and for no other.
treaty stipulation in cases of this kind. Hence, when He was surrendered to the authorities of Kentucky.
a party charged with crime claims immunity from trial to be tried upon three several indictments for forgery,
on account of the provisions of the treaty under which The Canadian authorities were of opinion that the
he has been extradited, he must apply to the Executive evidences of his criminality were sufficient to justify
to interfere, through the law officers of the Crown, to his commitment for trial on said three charges. One stay the action of the court; otherwise it will not, at of the charges the Commonwealth voluntarily aban
his instance, stop to inquire as to the form of his ardoned. He was tried upon the remaining two, and rest, nor as to the means by which he was taken into found not guilty in each case by the jury, and now
custody. stands acquitted of the crimes for which he was extra
But a different rule prevails with us, because our dited.
government is differently organized. Neither the FedIt is true he was in court, and in the actual custody
eral nor State Executive could interfere to prevent or of the officers of the law when it was demanded that suspend the trial of Hawes. Neither the Commonhe should be compelled to plead to the indictment for
wealth's Attorney nor the court was to any extent embezzlement. But the specific purposes for which
whatever subject to the direction or control either of
the President of the United States or the Governor of the protection of the British laws had been withdrawn
this Commonwealth. from him had been fully accomplished, and he claimed that, in view of that fact, the period of his extradition
But the treaty under which the alleged immunity had been determined; that his further detention was
was asserted being part of the supreme law, the court not only unauthorized, but in violation of the stipula
had the power, and it was its duty, if the claim was tions of the treaty under which he was surrendered,
well founded, to secure to him its full benefit. and that the Commonwealth could not take advantage
The question we have under consideration has not of the custody in which he was then wrongfully held,
been passed on by the Supreme Court of the United
States, and it therefore so far remains an open one that to try and punish him for a non-extraditable offense. To all this, it was answered that "an offender against
we feel free to decide it in accordance with the results the justice of his country can acquire no rights by de
of our own investigations and reflections. frauding that justice.” That “ between him and the
Mr. William Beach Lawrence, in the 14th volume of justice he has offended, no rights accrue to the offender
the ALBANY LAW JOURNAL, at page 96, on the auby flight. He remains at all times, and everywhere,
thority of numerous European writers, said : liable to be called to answer to the law for his viola
“ All the right which a power asking an extradition tions thereof, provided he comes within the reach of
can possibly derive from the surrender must be what its arm.” Such is the doctrine of the cases of Cald
is expressed in the treaty, and all rules of interpretawell and Lawrence (8th and 13th Blatchford's Reports),
tion require the treaty to be strictly construed ; and, and of the case of Lagrave (59th New York). And if | consequently, when the treaty prescribes the offenses the cases of Caldwell and Lawrence could be freed
for which extradition can be made, and the particular from the complications arising out of the residence of testimony to be required, the sufficiency of which the prisoners within the territorial limits of the Brit
must be certified to the executive authority of the exish crown, and the fact that we received them from
traditing country, the State receiving the fugitive has the authorities of the British government in virtue of,
no jurisdiction whatever over him, except for the speci
fied crime to which the testimony applies." and pursuant to, treaty stipulations, it would be sound doctrine and indisputable law.
This is the philosophy of the rule prevailing in But did Caldwell or Lawrence come within the reach
France. The French Minister of Justice, in his circuof the arms of our laws? They were surrendered to
lar of April 15, 1841, said : “ The extradition declares us by a foreign sovereign to be tried for specified
the offense which leads to it, and this offense alone crimes, and were forcibly brought for the purposes of
ought to be inquired into." those trials within the jurisdiction of our courts, and
The rule, as stated by the German author Heffter, is,
that “The individual whose extradition has been the point in issue was not whether the prisoners had secured immunity by flight, but whether the court
granted cannot be prosecuted nor tried for any crime could proceed to try them without disregarding the
except that for which the extradition has been obgood faith of the government, and violating the
tained. To act in any other way, and to cause him to
be tried for other crimes or misdemeanors, would be preme law ?" The legal right of a judicial tribunal to exercise ju
to violate the mutual principle of asylum, and the sirisdiction in a given case must, from the nature of
lent clause contained by implication in every extradithings, be open to question at some stage of the pro
tion." ceeding, and we find it difficult to conceive of a person
And when President Tyler expressed the opinion charged with crime being so situated as not to be per
that the treaty of 1842 could not be used to secure the mitted to challenge the power of the court assuming
trial and punishment of persons charged with treason, the right to try and punish him.
libels, desertion from military service, and other like The doctrine of the cases of Caldwell and Lawrence
offenses, and when the British Parliament and the has been sanotioned by several prominent British of- American Congress assumed to provide that the perficials and lawyers, and has seemingly been acted upon
sons extradited by their respective governments should by some of the Canadian courts, and in oue instance be surrendered “ to be tried for the crime of which such (that of Heilbronn) by an English court.
person shall be so accused,” this dominant principle of