damage. The cases cited in the opinion of the court below, Fontano v. Robbins, 22 App. D. C. 253; Bond v. Newark, 19 N. J. Eq. 576; Memphis &c. R. R. Co. v. Wilcox, 48 Pa. St. 161; Adlard v. Muldoon, 45 Illinois, 193, are in substance to this effect. To make such a certificate conclusive requires plain language in the contract. It is not to be implied. Central Trust Co. v. Louisville &c. R. R. Co., 70 Fed. Rep. 282, 284. The cases of Sweeney v. United States, 109 U. S. 618; Martinsburg &c. Railroad Co. v. March, 114 U. S. 549; Chicago &c. Railroad Co. v. Price, 138 U. S. 185; Sheffield &c. R. R. Co. v. Gordon, 151 U. S. 285, were all cases in which the contract itself provided that the certificate should be final and conclusive between the parties.

The only case in which the certificate of the architect or his decision was by the contract made final was in case of doubt as to the meaning of drawings, in which case reference was to be made to the architect in charge, whose decision was to be final.

Both grounds urged by the plaintiff in error in this court for reversal of the judgment are untenable, and it must therefore be

Affirmed.

MR. JUSTICE BREWER took no part in the decision of this case.

JOHNSON v. BROWNE.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 481. Argued March 4, 5, 1907.-Decided April 8, 1907.

Although the surrender of a person demanded under an extradition treaty has been made, it is the duty of the courts here to determine the legality of the subsequent imprisonment which depends upon the treaties in force between this and the surrendering governments.

While the treaty of 1842, with Great Britain, had no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, such a limitation is found in the manifest scope and object of the treaty itself and it has been so construed by this court. United States v. Rauscher, 119 U. S. 407.

A person extradited under the treaty of 1899 with Great Britain cannot be punished for an offense other than that for which his extradition has been demanded even though prior to his extradition he had been convicted and sentenced therefor.

Sections 5272, 5275, Revised Statutes, clearly manifest the intention and the will of the political department of the Government, that a person extradited shall be tried only for the crime charged in the warrant of extradition, and shall be allowed a reasonable time to depart out of the United States before he can be arrested and detained for any other offense. Repeals by implication are never favored, and a later treaty will not be regarded as repealing, by implication, an earlier statute unless the two are so absolutely incompatible that the statute cannot be enforced without antagonizing the treaty, and so held that the treaty with Great Britain of 1899 did not repeal §§ 5272, 5275, Rev. Stat. While the escape of criminals is to be deprecated, treaties of extradition should be construed in accordance with the highest good faith, and a treaty should not be so construed as to obtain the extradition of a person for one offense and punish him for another, especially when the latter offense is one for which the surrendering government has refused to surrender him on the ground that it was not covered by the treaty.

THE respondent sued out a writ of habeas corpus from the Circuit Court of the United States for the Southern District of New York, directed to the agent and warden of the state prison at Sing Sing, in the State of New York, where he was confined, and pursuant to the terms of the writ the respondent was brought before that court in New York city, and after a hearing the court ordered his discharge. The agent and warden has appealed to this court from that order.

The facts appearing on the hearing before the Circuit Court on the return to the writ were these:

The respondent was an examiner of silks in the appraisers' department in the port of New York, and in the spring of 1903, in the Circuit Court of the United States for the Southern District of New York, a grand jury found two indictments against him, one being found against him jointly with two others for conspiring to defraud the United States in violation

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Statement of the Case.

of section 5440 of the Revised Statutes; and the other was against him alone for knowingly attempting to enter certain Japanese silks upon payment of less than the amount of legal duty thereon, in violation of section 5444, Revised Statutes.

In January, 1904, he, in company with one of the others named in the indictment (the other having fled the jurisdiction), was tried in the Circuit Court of the United States for the Southern District of New York upon the indictment charging them with conspiracy. He was convicted and sentenced to imprisonment in the state prison at Sing Sing, N. Y., for two years.

He appealed to the Circuit Court of Appeals for the Second Circuit, where the conviction was affirmed, and thereafter an application was made in his behalf to this court for a certiorari to review the judgment of conviction, which application was denied in January, 1906.

After his trial and conviction, and pending a review of the judgment, the respondent had been enlarged on bail, and after the judgment was affirmed in the Circuit Court of Appeals and a certiorari from this court had been denied, he was, on the nineteenth of January, 1906, duly called in the Circuit Court to submit himself to sentence, but did not appear, and his default was entered.

A few days subsequently he was found in the Dominion of Canada. This Government then instituted extradition proceedings in Montreal to procure his rendition upon the judgment of conviction of conspiracy to defraud the United States, and claimed it was an extraditable crime under the fourth subdivision of article I of the treaty or "extradition convention" of 1889, between the United States and Great Britain. That subdivision reads as follows:

"4. Fraud by a bailee, banker, agent, factor, trustee or director or member or officer of any company made criminal by the laws of both countries."

The respondent was held for extradition by the Canadian

commissioner, but, on writ of habeas corpus, the Court of King's Bench held that the conspiracy to defraud the United States, as set forth in the indictment upon which respondent was convicted, was not such a fraud as was provided for in the subdivision of the article of the treaty above referred to. Extradition was therefore refused.

Thereupon the United States secured the rearrest of the respondent on another complaint, charging him with the offenses for which he had been indicted under section 5444 of the Revised Statutes, and for which he had not been tried in New York. The Canadian commissioner held the respondent upon that complaint, and ordered his extradition, and, upon a writ of habeas corpus, the Court of King's Bench affirmed that order; and the respondent was then surrendered to the proper agent of the United States, who at once took him to the State of New York, and, having arrived within the Southern District of that State, the marshal of that district, proceeding under the warrant for imprisonment issued by the Circuit Court upon the conviction of the respondent on the conspiracy indictment, took possession of him and delivered him into the custody of the warden of Sing Sing Prison, there to be imprisoned for two years according to the sentence imposed upon him under the conviction as stated.

The respondent then obtained this writ upon a petition setting forth the above facts, and claimed that his imprisonment was in violation of the third and seventh articles of the extradition treaty between the United States and Great Britain. 26 Stat. 1508. The warden of the prison made return August 7, 1906, that he held the respondent by virtue of the final judgment of the Circuit Court of the United States for the Southern District of New York, rendered on the ninth of March, 1904, as above set forth.

Mr. W. Wickham Smith, with whom The Solicitor General was on the brief, for appellant:

There is nothing in either article III or article VII of the

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Argument for Appellant.

Blaine-Pauncefote Treaty of July 12, 1889, which protects the respondent from imprisonment under a sentence imposed before his flight.

It is entirely clear that the sole purpose of paragraph 1 of article VII was to prevent any claim being interposed on behalf of a fugitive convict that the provisions of the treaties of 1842 and 1889 applied only to untried criminals, and not to those who had been tried and convicted.

The language of article III is plain, unambiguous and unequivocal. It leaves no room for construction. Neither in a contract nor in a statute could these words be stretched so as to include punishment. The word "tried" has a plain meaning, everywhere understood, and as to which there can be no mistake or confusion. It certainly does not imply or include punishment. Until a party has been tried it cannot be determined whether he is to suffer any punishment. He may be acquitted, or after conviction sentence may be suspended, or he may be immediately pardoned, in none of which cases would he suffer any punishment. The object of inserting the word "triable" is obviously to protect the person extradited from being arrested and kept in custody or held in bail awaiting trial. It was obviously intended to give the party extradited a right to raise the question of the illegality of his arrest without having to wait until the prosecuting officer got ready to try him, and compel him to put in his plea for the first time at the beginning of the trial.

The necessity and propriety of adhering to the plain language of treaties has been fully recognized by this court. The Amiable Isabella, 6 Wheat. 1, 71; Society &c. v. New Haven, 8 Wheat. 464, 490; Tucker v. Alexandroff, 183 U. S. 424, 436.

The language of article III of the treaty of 1889, considered in connection with that of article II of the same treaty, repels any inference that it was the true intent and meaning of article III to forbid the punishment of any person extradited under the terms of the treaty for an offense of which he had