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between the States, adopted by Congress in 1778,

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The Albany Law Journal.

ALBANY, AUGUST 29, 1874.

EXTRADITION OF FUGITIVES FROM
JUSTICE.

Whoever has had his attention called to the subject of surrendering by one independent government to another for trial, persons found within the jurisdiction of the former, for crimes alleged to have been committed within that of the latter, need not be reminded how long it remained an open question whether, by the law of nations, it was held competent for the one government to refuse the request of the other for such surrender. Able jurists and publicists espoused opposite sides of the question, which was only settled by conceding it to be a matter to be regulated by treaty, and that, without such treaty, no obligation rested upon one State to yield to the requirements of the other, by surrendering up any person, while sharing the protection of its sovereignity and laws. The United States has accordingly entered into treaty with most of the European states, which extends to the British provinces, by which they are mutually bound to surrender fugitives charged with grave offenses, not political in their character, upon a requisition made, to be tried in the courts of the State in which the offense is alleged to have been committed. This, however, was rather a matter of mutual convenience and safety, than any necessity of such an arrangement, since whether nations will hold intercourse with each other, and to what extent, is a matter of choice and expediency. But a principle akin to this mutual surrender of criminals had been introduced and fully established between some of the colonies, afterward States in this country, growing out of the necessity there was of such a measure as one of mutual safety and protection. They stood in such a relation to each other, that though in jurisdiction independent of any right in one to legislate for the other, their juxtaposition and frequency of intercourse rendered it necessary that proper guard should be interposed to prevent persons, guilty of crimes in one, finding a refuge from punishment by fleeing to the other.

There was, accordingly, a confederation formed in 1643, between Massachusetts, New Plymouth, Connecticut and New Haven, then acting as separate colonies, by which "upon the escape of any prisoner, or fugitive for any criminal cause," he was to be apprehended and delivered "into the hand of the officer or other person who pursueth him." In the articles of confederation

with treason, felony, or other high misdemeanors in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the governor or executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of his offense." And when the constitution of 1787 was framed, a clause almost identical in terms was inserted, with the exception of "other high misdemeanors" being substituted for "other crimes."

Two things, it will be perceived, are requisite to give a right to the governor of one State to demand of the governor of another, to deliver up a person found within such State, on being "charged with treason, felony or other crime," and his having fled from justice.

It is, to say the least, a little remarkable that upon so delicate and important a point as the surrender by the governor of one of these independent States being obliged to surrender one of its citizens to be forcibly carried, it may be, a thousand miles from his home, to be tried, if some citizen of some other State should see fit to charge him with "a crime," and even induce the governor of the State in which such crime is alleged to have been committed, to demand the surrender of the person so charged, the language of the constitution should have been left so loose and vague, and should leave the governor upon whom the requisition is made, no discretion in the matter. Has such governor no right to inquire and satisfy himself that a crime has been committed, and that there is reasonable ground to believe that the person charged is guilty, and has fled from justice? Then, again, has he no right to judge whether the act done is a crime?" Is that point to be determined by the law of the State where the act is committed, or by the law of nations, or the Divine law, or the common or statute law of the State in which the person charged is found? We are told that to kill a stork in Holland, or to cut a tree in the grove above Andermatt, in Switzerland, was, if it is not now, a high crime there. If there was such a law in one of our States, for example, in Nebraska, and a citizen of Massachusetts were to commit the act in that State, and its governor, upon a charge against him, should demand him of the governor of the State of Massachusetts, would he not be at liberty to inquire if the act was in fact done, and if the person doing it knew that it was a crime? Or, if a citizen of Nebraska, while in Boston, were to do so heinous a thing as to sell a glass of lager beer to some reckless Teuton, and, upon being charged therewith, six months afterward, by some zealot in the good cause, the governor of Massachusetts were to demand to have him surrendered to the officers of Massachusetts, to be dealt with there; did the constitution intend to make such executive a mere catchpole, without a spark of discretion to deliver up

one of the quiet, respectable citizens of his own State to be carried to Massachusetts to be tried? It will appear before we close, that this is not a mere fanciful supposition, so far as the principle of the thing is concerned.

Questions of the gravest moment have, heretofore, arisen between governors of the slave and free States, growing out of requisitions made for the delivery of citizens living in a free State, for an alleged violation of the slave laws of the State making the requisition. As the allegation contained no charge of any crime known to the State in which the citizen implicated by it resided, the governors thereof were slow to recognise any obligation to passively obey these requisitions. Fortunately no such cause of difference or dispute any longer exists. But, if we mistake not, other causes of equal difficulty remain, if the opinions of different governors continue to be as diverse as they have heretofore been found at times. It may be remarked, in passing, that Congress has prescribed the mode of proof to support the demand to be “indictment or affidavit."

Some of these points were more or less directly referred to by the court in the celebrated case of Joe Smith, the Mormon Prophet, 3 McLean, 121, 139. But as so many of them have been authoritatively setled by the United States court, in Commonwealth of Kentucky v. Dennison, Governor, etc., 24 How. 66, we shall content ourselves with the rulings in that case, as the basis of what seems to us to deserve attention in the workings of these rules.

In this case the governor of Kentucky made a requisition upon the governor of Ohio, for the surrender of one Lago, indicted for seducing and enticing a certain slave of one N., to leave her owner, and aiding her in attempting to make her escape. The governor of Ohio, under the advice of the attorneygeneral of that State, declined to obey this requisition, he holding that "the offense charged does not rank among those upon which the constitutional pro vision was intended to operate." The same doctrine had been held and acted upon by a prior attorneygeneral of the same State, under a similar state of facts. A mandamus was thereupon applied for, from the United States court, to be issued to the governor of Ohio, requiring him to comply with this requisition, by delivering up Lago as a fugitive from justice. The court, in a very elaborate opinion, held that the constitution " was intended to include every offense made punishable by the law of the State in which it was committed; that it gives the right to the executive authority of the State to demand the fugitive from the executive authority of the State in which he is found; that the right to demand,' implies that it is an absolute right, and it follows that there must be a correlative obligation to deliver, without any regard to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled," making such governor a mere ministerial officer, with

no discretionary power. From any thing we find in the case, the court do not appear to deny the right of the governor upon whom the demand is made, to inquire if the person charged has indeed fled from justice, without thereby violating his duty. this is, perhaps, the less important, when we are told by the court, that if the governor applied to, refuses to discharge his duty, "there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him."

The law then may be considered as definitely settled, and the lager-beer clause of the Massachusetts statute may be made to reach a fugitive culprit under the very shadow of Yuba Dam. But we are left in a quandary what a governor ought to do under circumstances like the following, which occurred, as the records show in one of the States, prior to the decision we have above cited, which was made in 1860. A citizen of a western State, of good address and appearance, we will call him Jones, visited one of the eastern cities, and while there, by means of false pretenses, obtained goods of several persons to a considerable amount. One of these, Mr. Smith, a respectable and intelligent tradesman, obtained an indictment against the western citizen, and upon an application to the governor of the State in which the act was committed, obtained a requisition upon the governor of the State in which Mr. Jones resided, for his delivery, to be tried in the courts of the former State. The governor appointed the prosecutor and an officer of the State as agents to receive the fugitive. They proceeded to the State where he resided, and the governor thereof, in compliance with the requisition, caused the person charged to be arrested and delivered to these agents. They were proceeding with their charge on their way, and had, as they averred (but of this there was said to be some doubt), crossed the line of the State, when they were overtaken by an officer with a paper, alleged to be a writ of habeas corpus, and were required to bring their prisoner before a certain magistrate, according to the usual forms required in such writs. They at once returned with him to the place designated, where they remained over night. In the meantime, they took counsel of a leading lawyer in the place, and were advised that the paper, purporting to be a writ of habeas corpus, was radically and essentially defective, and that they were not bound to obey it; and as no further action had been taken in behalf of the prisoner, they started with him again in a carriage, and brought him through some four States, and surrendered him to the authorities of the State for which they acted.

The offense charged being one which it was lawful to compromise and settle, the defendant found means to do so, and was discharged, with any thing but kindly feelings toward his prosecutor. The following year, another governor having been chosen, he received from the governor of the western State above

referred to, a requisition to give up the person who had acted as agent in executing the former requisition, to be carried back, as a fugitive from justice, to the State in which he had executed it, and received the first named party, to answer to an indictment for kidnapping. Jones, who was the prosecutor in this new process, and was the agent appointed by the governor who issued the requisition to receive Smith, the person against whom it was issued. The agent, moreover, informed the governor to whom the requisition was addressed, "that he should insist upon its being complied with, if the party charged in it did not settle it with him." The governor suggested as objections to his compliance, that it was difficult to understand how taking a man by virtue of a legal precept, and bringing him away agreeably to its requirements, could be held to be kidnapping; or how, as the only carrying away that had occurred constituted the act itself, of which he was charged, he could be said thereby to have fled from justice, after the commission of any crime; that he was required to give up as a criminal a respectable citizen, for having executed the very power which had been conferred on him by the executive of the State, his predecessor; and that he did not deem it consistent with the office he held, to lend its prerogative, by arresting a citizen, to compel him to "settle" with an adversary, and he therefore declined to comply with the requisition. The agent expressed himself in pretty strong terms of dissatisfaction at this conclusion, cited the constitution, and gave the governor to understand that he would hear further from the western executive, which turned out to be true. But the resolution first formed, was adhered to, and the requisition has never been complied with. And yet, had he done this after 1860, he would have been clearly violating the law, so far as its letter is concerned. And if the executive of one State sees fit to employ an agent to go to another State and bring back a person charged and indicted with a crime, who has fled from justice, and this same person, after having expiated his offense in the latter State, can procure, it may be upon his own oath, an indictment against such agent for the act of taking and removing him, by charging it as a crime, he has only to go to the executive of his own State, and obtain a requisition for the arrest of the party so indicted, and the executive who employed and sent him as a public agent to execute a legal process in behalf of the State, must give him up, and issue a warrant to arrest him, and send him back there to be tried as a criminal, by the laws of that State, for exercising the authority with which he himself had clothed him.

If such is the letter of the constitution, it is, we repeat, perhaps fortunate that there is no power in the government by which it can be enforced. With the attribute of sovereignty in the States, by which each may make its own laws, and declare what acts it pleases, crimes, with the constant inter-communi

cation of the people of these States, by the way of business and travel, it is, to say the least, giving a pretty formidable power of coercion to the citizen of one State over that of another, with whom he may have had dealings or difficulties, if he can manage to make affidavit or obtain an indictment for some alleged crime, for the violation of some railroad law, or the taking of usury, or selling a lottery ticket or the like, and can obtain from his own executive a requisition upon that of the State where his victim dwells, and the latter has no alternative but to obey the same, though he knows its purposes to be base and dishonorable. It may be the constitution and the law, but it looks very much like an infringement of the prerogative of an independent State in protecting its own dignity and the safety of its own citizens.

LIABILITY OF EXPRESS COMPANIES. In Christenso v. The American Express Company, 2 Am. Rep. 122 (15 Minn. 270), the liability of express companies in case of a restriction in the receipt given by them was considered. The facts of this case were these: The defendants were an express company engaged in transmitting from place to place goods for hire, having at different points local agents whose duty it was to receive goods transmitted and deliver the same to the consignee, as well as to receive goods for transmission, having no vehicles or other means of transportation except at their local offices for local purposes, but transmitting goods in charge of their messengers, by steamboats, railroads, coaches, etc., owned and controlled by other parties. Plaintiffs' agent delivered to them goods for transportation, taking a receipt, in which it was stipulated that the defendants were not to be liable for any loss or damage except as forwarders only. Nor for perils of navigation and transportation. The steamboat on which the goods were being transported, in consequence of the negligence of those in charge, ran upon a snag and was sunk, thereby injuring the goods. In an action to recover the damages, held that the defendants were common carriers, not forwarders, and as such were liable for the loss notwithstanding the terms of the receipt which could not cover loss arising from negligence. The rule that express companies who forward goods from place to place for hire, in conveyances owned and managed by others, are common carriers and liable for negligence (even where the receipt restricts the liability), in themselves or in the agencies which they employ to transport goods and packages, seems to be supported by the following additional cases. Hooper v. Wells, Fargo & Co., 27 Cal. 11; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189; Sherman v. Wells, 28 Barb. 403; Baldwin v. American Express Company, 23 Ill. 198; 26 id. 504; Read ▼. Spaulding, 5 Bosw. 359; Harlem v. Adams Express Co., 6 id. 285; Sweet v. Barney, 23 N. Y. 335; Venier v. Sweitzer, 32 Penn.

St. 208; Southern Express Co. v. Newby, 36 Ga. 635. In Sweet v. Barney, supra, it was said that "it is conceded that the liability of a carrier begins with the receipt of the goods by him, and continues until the delivery of the goods by him subject to the general exceptions. And an express carrier is bound to deliver goods at their destined place to the consignee, or as the consignee may direct." That a carrier cannot discharge himself from liability for the consequences of his own negligence or that of his agents is established by the following cases: Grace v. Adams, 1 Am. Rep. 131, and note; Ashmore v. Pennsylvania Central Railway Co., 4 Dutch. 180; Davidson v. Graham, 2 Ohio St. 131; Camden & Amboy Railroad Co. v. Baldan, 16 Penn. St. 77; Pennsylvania Railroad Co. v. McCloskey's Administrators, 23 id. 523.

From these cases the doctrine may be deduced that an express company, even in case of a restricted liability contained in the receipt which it gives for a package, is not exempt from liability where the loss occurs in consequence of the negligence of the railroad or steamboat company which it employs to transport the package, although the package may be in charge of the messenger of the express company traveling on the cars or the steamboat, and although the express company may have no control over the railroad or steamboat company. But this doctrine has been denied in a recent case and a new rule has been laid down. We refer to Bank of Kentucky v. Adams Express Company, decided recently by Judge Ballard of the United States District Court in Kentucky. The facts in the case are substantially as follows: The Southern Express Company and the Adams Express Company are engaged each, in the business of carrying money and other articles from one part of the country to another for hire, at the request of any one who offers such articles to them for carriage. They do not use in their business any vehicles of their own, except such as are required to transport the articles, intrusted to them, to and from railroad depots, and to and from steamboat landings. They use railroads, steamboats and the other public conveyances of the country. These conveyances are not subject to their control, but are governed entirely by the companies and persons to whom they belong. The packages intrusted to them are at all times, while on these public conveyances, in the care of one of their own messengers or agents. These companies are engaged in carrying by the railroads through Louisiana and Mississippi to Humboldt, Tenn., and thence over the Louisville and Nashville railroad to Louisville, Ky., under a contract by which they divide the compensation in proportion to the distance the article is transported by the respective companies. Between Humboldt, Tenn., and Louisville, Ky., both companies employ the same messenger, but this messenger south of the northern boundary of the State of Tennesee, is subject entirely to the orders of the Southern Express Company, and north of that bound

ary is subject entirely to the orders of the Adams Express Company.

The Louisiana National Bank delivered a package containing $13,528.15 to the Southern Express Company addressed to plaintiff, the Bank of Kentucky, Louisville, Kentucky. This package was carried by the Southern Express Company from New Orleans to Humboldt, Tenn., and there delivered to the joint messenger of the Southern and Adams Express Companies. While it was in the custody of this messenger between Humboldt and the northern line of the State of Tennessee, the car in which the package was contained was precipitated through a trestle-work on the line of the Louisville and Nashville railroad, at or near Budd's creek, and the car and package were destroyed by fire. This was caused by the fallen locomotive, without any fault or neglect on the part of the messenger who had charge of the package. So much of the receipt as is material to the present controversy is as follows:

"SOUTHERN EXPRESS COMPANY,
"Express Forwarders,

"No. 2.-$13,528.15.
July 26, 1869.
"Received from the Louisiana National Bank one
package, sealed and said to contain $13,528.15, ad-
dressed 'Bank of Kentucky, Louisville, Kentucky.'

*

"Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and there deliver the same to other parties to complete the transaction, such delivery to terminate all liability of this company for such damage; and also that this company are not to be liable in any manner, or to any * of such packextent for any loss or damage * * age or of its contents * occasioned * * * by fire or steam. The shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained, shall extend to and inure to the benefit of each and every company or person to whom the Southern Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person."

On the trial of the cause the judge charged the jury, among other things, as follows:

"Now, if you believe that the package was destroyed by fire, as above indicated, without any fault or neglect on behalf of the messenger, or the defendant, the defendant has brought itself within the terms of the exception and it is not liable. It is not material to inquire whether the accident resulted from the want of care, or from the negligence of the Louisville and Nashville railroad and its agents or not, since the uncontroverted testimony shows that the car and train in which the messenger of the Adams Express Company was transporting the package, belonged to the Louisville and Nashville Railroad Company, and were exclusively subject to its control and orders. A

common carrier who has not limited his responsibility is undoubtedly responsible for losses, whether occurring on vehicles controlled by himself exclusively, or belonging to and controlled by others, because he is an insurer for the safe delivery of the article which he has agreed to carry; but, when he has limited his liability so as to make himself responsible for ordinary care only, and the shipper, to recover against him, is obliged to aver and prove negligence, it must be his negligence or the negligence of his agents, and not the negligence of persons over whom he has no control.

"If in his employment he uses the vehicles of others over which he has no control, and uses reasonable care—that is, such care as ordinarily prudent persons engaged in like business use in selecting the vehicles, and if the loss arises from a cause against which he has stipulated with the shipper-he shall not be liable for the same unless it arises from his want of care, or the want of care of his employees."

***

The jury found a verdict for defendant and on a motion for a new trial, the judge delivered an opinion stating the above facts and adhering to the law as set forth in his charge. While not agreeing with Judge Ballard as to the law of the case, we present the following extract from his opinion, as setting forth in an able manner the view which he takes: "The correctness of the proposition contained in the charge may be demonstrated in two ways: First-By the contract between the bank and the express company, it was agreed that the company should not be responsible for any loss or damage of the package which should be occasioned by fire; the loss of the package was occasioned by fire, hence the carrier, by the terms of the contract, is not responsible. It is not pretended that the contract was violated by using the cars of the Louisville and Nashville Railroad Company to transport the messenger and the package, or was violated in any other respect. It follows, therefore, that, if the company is liable at all, it is not so by virtue of the contract but in spite of it.

The contract, however, does not attempt to exempt, nor could it have exempted, the express company from loss occasioned by the neglect of itself or its servants, but when it is sought to charge the company with neglect, it must be such neglect as it is responsible for upon the general principles of law. Now, upon those principles, no one is responsible for damage occasioned by neglect, unless it be the neglect of himself or his servants or agents. But the facts stated show that neither the company nor its servant was guilty of any neglect. It follows that the defendant cannot be charged on this account. Though the defendant used the Louisville and Nashville railroad to transport its messenger and the package, the railroad company was not, in any legal sense, the servant of the defendant. The defendant had no control over the railroad company or over its servants. The railroad company was no more the ser

vant of the defendant than it is of any passenger whom it transports. It was no more the servant of the defendant than is the hack or cab the servant of him who hires it to transport him from one part of the city to another.

Second All the authorities agree that when a common carrier has, by special contract, limited his responsibility, "he becomes, with reference to that particular transaction, an ordinary bailee - a private carrier for hire," or, "reduces his responsibilities to those of an ordinary bailee for hire." York Co. v. Central Railroad, 3 Wallace, 107; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 Howard, 382; Railroad Co. v. Lockwood, 17 Wallace, 357.

He still

I prefer the latter form of stating the proposition because it is less misleading. I do not think that a common carrier, by entering into a contract limiting his responsibility, changes his character. remains a common carrier, with his responsibility limited in respect to the matter embraced in his contract, to that of an ordinary bailee for hire. The authorities are equally clear that an ordinary bailee for hire is bound to only ordinary diligence, and responsible only for losses and injuries occasioned by negligence or want of ordinary care. The defendant did

by special contract limit its responsibility, and neither it nor its servant, the messenger, is chargeable with any neglect or want of care. The loss of the package was occasioned by fire. The contract provides that the defendant should not be liable for a loss so occasioned, and as neither the defendant nor defendant's servant was wanting in care, it follows that it is not responsible for the loss.

Suppose the package had been lawfully intrusted by the Louisiana National Bank to a private person to be carried for hire, and delivered to the plaintiff, and it was contemplated by the parties that such person would transport the package and himself by the railroads, which, it was contemplated, the defendant would use, and the package had been lost under the same circumstances that the package delivered to the defendant was lost, would it for a moment be contended that such private person would be responsible?

Suppose, again, that a person should deliver to his friend, who contemplated coming from New Orleans to Louisville by the ordinary modes of travel, a watch, to be carried and delivered at the latter city, and that while such private carrier, without reward, was proceeding on his way in one of the cars of the Louisville and Nashville Railroad Company, the car should, by the gross carelessness of those having charge of it, be thrown from the track, and the watch in charge of the carrier, without any neglect on his part, destroyed. Is it conceivable that such carrier would be responsible for the loss? To hold that he would be responsible would not only violate the plainest principles of law, but would shock the common sense of mankind, and yet, not only the private carrier for