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The rule at one time was understood to be (Keanes
V. Bageott, 2 H. Black. 511) that when the court can
pronounce the contract to be for the benefit of the
infant as for necessaries, it is good; when to his
prejudice, it is void, and where the contract is of
an uncertain nature as to benefit or prejudice, it is
voidable only at the election of the infant. In
Homer v. Dipple, 81 Ohio St. 72, it is sud that the
current of more recent decisions repudiates the dis-
tinction between void and voidable contracts on
account of their prejudicial nature, and holds them
all to be voidable only. In this case it was held
that an undertaking by an infant as surety for the
stay of execution is not void, but only voidable,
and when ratified by him after arriving at majority,
becomes a valid and enforceable contract. In Owen
y. Long, 112 Mass. 408, a surety contract was held
to be voidable only, for the reason that such con-
tract, as matter of law, cannot be said to be neces-
sarily prejudicial to the surety. Also, an account
stated is held to be voidable only. Williams v.
Moor, 11 M. & W. 255. Also, a conveyance by lease
and release. Touch v. Parsons, 8 Barrows, 1794. In
Whitney v. Dutehy 14 Mass. 457, it is said : " Per-
haps it may be assumed as a principle that all sim-
ple contracts by infants, which are not founded on
an illegal consideration, are strictly not void, but
only voidable, and may be made good by ratifica-
tion. They remain a legal substratum for a future
assent, until avoided by the infant; and if, instead
of avoiding, he confirm them, when he has legal
capacity to make a contract, they are, in all re-



spects, like contracts made by adults." And in
Heed Y. Batchdder, 1 Mete. 559, it is said: "The
question what acts of an infant are voidable and
what void is not very definitely settled by the au-
thorities ; but, in general^ it may be said that the
tendency of modem decisions is to consider them
as voidable, and thus leave the infant to aflBirm or
disaffirm them when he comes of age, as his own
views of his interest may lead him to elect." See,
also, the following cases, which are to the effect that
an infant's contract of suretyship is merely voidable,
and may be ratified. They also show, with more or
less force and directness, that the distinction be-
tween void and voidable contracts of infants, on
the ^ound of benefit or prejudice, is not sound.
Curtm V. Patton, 11 Serg. & R. 305; Hinely v. Mar-
ganitz, 8 Barr, 428; Oatchin v. Gromach, 13 Ver.
330; Vaughn v. Da/rr, 20 Ark. 600; Shropshire v.
Bums, 46 Ala. 108; WiUiams v. Mom-e, 11 M. & W.
256 ; Fetroto v. Wiseman, 40 Ind. 148 ; Fonda v. Van
Home, 15 Wend. 631; Scott y, Buchanan, 2 Humph.
468; Cole v. Penrioyer, 14 111. 158; Cummings v.
PottelL 8 Texas, 80; IJ. J. Marshall. 236; Mustard
V. WoMford's Heirs, 15 Grattan, 829.

In State v. Hyer, 10 Vroom (89 N. J. Law), 598, it
is said that although the practice of courts is to ad-
vise juries not to convict a defendant on the uncor-
roborated testimony of an accomplice, yet a convic-
tion founded on . such evidence is strictly legal.
This doctrine is supported by high authority. In
Atwood and Robbins' case, 1 Leach's C. C. 464, which
was a .trial for robbery from the person, the only
evidence to identify the prisoners and connect them
with the robbery was the testimony of an accom-
plice, that he and defendants were the persons that
committed the crime, and a conviction was held
legal. In Reie v. Durham, 1 Leach's C. C. 478, the
case was permitted to go to the jufy upon the sole
evidence of an alleged accomplice, the judge stating
that the twelve judges who sat in the Atwood and
Bobbins* case were unanimously of the opinion that
the practice of rejecting an unsupported accomplice
was rather a matter of discretion with the court than
a rule of law. In Bex v. JoTies, 2 Campb. 181, Lord
Ellenborou^h remarks, " no one can reasonably doubt
that a conviction is legal, though it proceed on the
evidence of an accomplice. Judges in their discretion
will advise a jury not to believe an accomplice unless
confirmed." In Rex ^r. WUkes, 7 C. & P. 272, Al-
derson, B., said to the jury, *'you may legally con-
vict on the evidence of an accomplice only, if you
can safely rely on his testimony.'' To the same ef-
fect see Beg. v. Farlar, 8 C. & P. 106. In Beg. v.
Stubbs, 83 £. L. & Eq. R. 552, it is said <'it is not a
rule of law that accomplices must be confirmed in
order to render a conviction valid, but it is usual in
practice for the judge to advise the jury not to con-
vict on such testimony alone, and jurors generally
attend to the judge's direction, and require^confirma-
tion, but it is only a rule of practice." In 1 Whar-
ton's Cr. Law, § 783, the author states that the pre-
ponderance of authority in this country is that a
jury may convict a prisoner on the testimony of an
accomplice alone, though the court may at its dis-
cretion advise them to ac(juit unless such testimony
is corroborated on material points, and numerous
authorities from different States are given in support
of this statement. In Pennsylvania, the statute es-
tablishes a different rule. If the credibility of the
accomplice be otherwise impeached, it is ground for
new tnaL People v. Hqynes. 55^ Barb. 450^



140



THE ALBANY LAW JOURNAL.



THE CASES OP CALDWELL AND LAWRENCE.

BT SAMUEL T. 8PBAB, D. D.

ORDINARILY, treaties are simply compacts be-
tween nations, generally made by their ex-
ecutive heads, possessing in themselves no legisla-
tive character whatever, binding the faith of the
contracting parties, and, as to their application and
construction, the subjects of executive and diplo-
matic rather than judicial consideration. The Con-
stitution of the United States, while not discarding
these principles, nevertheless, in its sixth article,
gives to the treaties of the United States the attri-
butes of law, and makes them a part of '* the su-
preme law of the land." As such, they furnish an
imperative rule for the guidance of courts, both
State and Federal.

The explanation of this doctrine by the Supreme
Court of the United States, in Foster v. Nellsan, 2
Pet. 263, is that where a treaty ** operates of itself,
without the aid of any legislative provision,'* it is
" to be regarded in courts of justice as equivalent
to an act of the legislature," and that where it re-
quires legislation to carry it into effect, **the legis-
lature must execute the contract before it can be-
come a rule for " coorts. In both cases the treaty
is a law only in its internal operation among the
people of the United States; and as it respects a
foreign nation, it is merely a contract between the
two governments, pledging their faith in reference
to the matters involved. Its municipal character
has no extraterritorial action, and, of course, can-
not affect other countries or their rights.

The express stipulations of the extradition treaties
of the United States were, in a previous article, en-
titled, ** The Extradition Remedy, ".considered with
reference to the question whether they imply an
obligation as between the contracting governments,
that a person extradited shall be tried only for the
offense for which he was demanded and surren-
dered, thus excluding the right of trial or detention
for all other offenses committed prior to his extra-
dition. The answer to this question was that there
is such an obligation, not, indeed, stated in positive
terms, but implied in the express provisions of these
treaties, and that this construction is equally im-
plied in the legislation of Congress to carry them
into effect.

It is ndt proposed here to reargue this question.
What we now say is that the Constitution makes
this implied obligation, if real, a part of " the su-
preme law of the land,'* binding upon courts in all
cases to which it applies, and, as a law, superior to
any State constitution or any State enactment, and
superior even to an anterior law of Congress in
conflict with it. It gives to the extradited person
a right arising under these treaties which courts of
justice in this country are bound to respect. This
results from the reality of the obligation, which,



having already argued this point, we shall for the
most part here assume.

Two of the cases in which the question was con-
sidered by the courts of this country, whether a per-
son surrendered under a treaty can be put on trial
for any other than the extradition charge, came be-
fore the Circuit Court of the United States for the
Second Circuit, and were decided by Judge Bene-
dict. These cases it is proposed to examine in this
article.

The first case is that of The United States v.
CcUdweU, 8 Blatchf. C. C. R. 181, decided in Janu-
ary, 1871. Caldwell, in 1870, was extradited from
the Dominion of Canada on the charge of forgery,
for which he was not tried at all, but was indicted,
tried, convicted and punished for bribing an oflScer
of the United States, which was not an extraditable
offense under the treaty of 1842 with Great Britain.
(See Clarke on Extradition, sec. ed., pp. 107, 108.)
He raised before Judge Benedict the question of
the court's jurisdiction to try him for any offense,
committed prior to his extradition, other than the
one iot which he had been delivered up by the
Canadian authorities. The Judge held the plea to
be bad, and gave him liberty to withdraw it and
enter a plea of not guilty. The following extract
contains the substance of the deliverance of the
Judge in respect to the question of jurisdiction :

* * I am of the opinion that the relief could not be
granted, for the reason that the person of the pris- ,
oner is not within the jurisdiction of the United
States by virtue of any warrant issued out of this or
any court. The prisoner was brought within the
jurisdiction of the United States by virtue of a war-
rant of the executive authority of a foreign govern-
ment, upon the requisition of the Executive Depart-
ment of the Government of the United States ; and,
while abuse of extradition proceedings, and a want
of good faith in resorting to them, doubtless con-
stitute a good cause of complaint between the two
governments, such complaints do not form a proper
subject of investigation in the courts, however
much these tribunals might regret that they should
have been permitted to arise. * ♦ ♦ ♦ But
whether extradited in good faith or not, the pris-
oner, in point of fact, is within the jurisdiction of
the court, charged with a crime therein committed ;
and I am at a loss for even a plausible reason
for holding, upon such a plea as the present,
that the court is without jurisdiction to try him.
♦ ♦ ♦ * And I cannot say that the fact that
the defendant was brought within the jurisdiction
by virtue of a warrant of extradition for the crime
of forgery affords him a legal exemption from prose-
cution for other crimes by him committed."

The doctrine here stated is that Caldwell, having
been brought within the jurisdiction of the United
States, not by virtue of a warrant issued by the court
or that of any court, but by the surrender of a for-
eign government in compliance with a requisition
made by the United States under the provisions of
a treaty, and being there duly charged with crime,
could not, as to the crime for which it would bo



THE ALBANY LAW JOURNAL.



Ul



allowable to put him on trial, make any appeal to
the treaty or the extradition proceedings under
which he was thus brought into the jurisdiction.
The court did not examine the treaty or pass any
judgment upon its provisions, and did not consider
for what crime or crimes Caldwell had been extra-
dited. Whether the proceedings were in good or
bad faith was a matter of no consequence, except as
between the two governments. These questions were
immaterial, regarded as affecting the jurisdiction of
the court to try the prisoner for any offense charged
against him, whether it was or was not the crime
for which he had been demanded on the one hand,
and surrendered on the other. No plea based upon
the treaty or the proceedings under it was pertinent
on his lips. Such we understand to be the sub-
stance of this deliverance.

Bearing, then, in mind that every treaty of the
United States, that is self-executing by its own
terms, or for whose execution Congress has provided
by law, is a part of '* the supreme law of the land,"
and, as such, binding upon courts, and that Con-
gress had provided for the execution of the extra-
dition stipulation of 1842, with Great Britain, and
that consequently that stipulation was a part of the
law of the land, we propose briefly to compare the
ruling of the Judge with this stipulation. Take
the following points :

1. The treaty enumerates seven specific crimes as
the only ones for which extradition can be had at
all, and bribing an oflicer of the United States is
not one of these offenses. By obvious implication
the treaty limits the remedy which it secures to the
list of crimes enumerated. If this be not so, then
tlie enumeration is without meaning, and without
practical eflicacy. And yet Judge Benedict, in ef-
fect, says that when possession of the accused per-
son has been obtained under the treaty, the court
may proceed to try him for any offense, whether
within the list of extradition crimes or not.

2. The treaty says that a speci^c crime or crimes
must be ^' charged " as the basis of the demand,
and the ground of delivery, and that this charge
must fix the locus delicti in the demanding country,
and allege that the criminal has escaped from its
justice and sought asylum, or is found within the
country on which the demand is made. There can
be no extradition without such a charge. And yet
Judge Benedict, in effect, says, that such a specific
charge having been made, and custody of the ac-
cused having been thus obtained, it is at the option
of the government gaining the custody to abandon
the charge altogether if it shall so please, and put
the person on trial for an offense not only not with-
in the extradition list, but not at all named or con-
templated in the proceedings.

8. The treaty says that the delivery of the per-
son accused shall be made only upon a specified



amount of evidence in support of the charge, and
that the government asked to make the delivery is
to be the judge whether the crime charged is with-
in the extradition list, and, if so, whether it is
proved by evidence sufficient to call for the surren-
der. And yet Judge Benedict, in effect, says that
when the accused party has been delivered upon
evidence deemed sufficient by the delivering gov-
ernment, he may be tried and convicted of a crime
not only not within the extradition list and not
charged at all in the proceedings, but also one in
respect to which not a particle of evidence in proof
thereof was presented to or considered by the gov-
ernment that made the surrender. The right of
that government, growing out of the stipulation in
respect to evidence, is entirely set us! le by this
theory.

4. The treaty, in virtue of the above provisions,
clearly implies that the right of asylum, in the
country where the fugitive is found, is by the de-
livery impaired and withdrawn only to the extent
and for the purpose specified in the extradition pro-
ceedings. And yet Judge Benedict, in effect, says
that the moment the receiving government gets pos-
session of the fugitive, the right is withdrawn to
the fullest extent and for all purposes.

5 . The treaty, in its implied obligations as aris-
ing from its own provisions, is a law of the land,
and as such, a rule for the guidance of courts in
settling any question of jurisdiction or of individ-
ual rights to which it is applicable. And yet
Judge Benedict, in effect, and that, too, without
inquiring whether the implied obligation, as claimed
by Caldwell, was real or not, says that courts have
nothing to do with this question one way or the
other. The plea of Caldwell was bad, though he
appealed to a treaty as its basis.

We confess ourselves unable to place the ruling
of the Judge and the treaty of 1842, with Great
Britain, side by side, without coming to the con-
clusion that the two are in palpable conflict. If the
former stands as good law, it must stand at the ex-
pense of the latter. We do not believe that it is
good law.

The fact in this case is that Caldwell was extra-
dited for an offense for which he was not tried, at
all, and was tried and punished for an offense for
which he was not and could not have been extradi-
ted. The jurisdiction was not used for the purpose
for which it was gained, and was used for a pur-
pose for which it was not and could not have been
gained. It is difficult to conceive of a proceeding
under the forms of law more entirely foreign to the
nature and design of the extradition remedy, or
more inconsistent with the implied obligation that
results from the express stipulations of the treaty of
1842, with Great Britain, and, therefore, with that
provision of the Constitution which makes a treaty



142



THE ALBAITT LAW JOUENAL.



a part of the law of the land, and gives to every
party, when standing before a court, whatever rights
grow out of this fact. Any rule of criminal prac-
tice that can be followed only at the sacrifice of a
treaty is constitutionally, in that connection, a bad
rule, wliateyer the books may say about it as a gen-
eral rule. The jurisdiction of a court over a person
placed at its bar, and there charged with crime, is
subject to whatever qualification the express or im-
plied obligations of a treaty of the United States
may impose, and that, too, because the treaty has
the authority of a supreme law for the government
of that court. It is both the right and the duty of
the court to hear a plea founded on a treaty, and
secure to the party making the plea whatever rights
the treaty secures. The question presented is one
of law.

The other case is that of The United States v.
Lawrence, 13 Blatchf. C. C. R 295, decided in
March, 1876. Judge Benedict, after saying that
**this case comes l)efore the court upon a demurrer
interposed by the United States to a rejoinder filed
by the defendant," proceeds to make a statement in
respect to the pleadings. This statement, though
not positively declaring the fact, naturally gives the
impression that the United States were moving for
the trial of Lawrence on the charge of all the of-
fenses for which he was indicted, all of them "being
forgeries, alleged to have been committed within
the jurisdiction of this court, and all, by statute,
offenses against the United States." One of the
items in the plea of the defendant, as stated by the
Judge — the only one with which we are concerned —
is** that the offenses with which the accused is
charged in the indictment are not the offenses on
which tl\e surrender to the United States was
grounded, but are other and different crimes from
those specified in said warrant of extradition, and
that he has been held in custody for the crimes
specified in the warrant of extradition, but he has
not been tried for either of said offenses, " and that
for this reason he claims that the "court has no
jurisdiction to try the present indictment " until the
accused shall have a reasonable time, ** after his
trial for the crimes specified in the extradition war-
rant," to return toiler Majesty's dominions. The
replication filed to this plea, as stated by the Judge,
admits some of its allegations and denies others,
but insists **that by the laws of Great Britain and
the United States, as well as by the practice of both
parties to the treaty, no limitation exists as to the
number and character of the offenses for which a
person extradited may be tried." The rejoinder
filed by the defendant is stated to be a repetition of
the facts set forth in the plea, * * without substan-
tial change." To this rejoinder the Government
filed a general demurrer, and thus the cause came
before the court on the demurrer.



Such is the statement of the case ; and although,
in his deliverance, the Judge nowhere explains the
indictment on which Lawrence was arraigned, but
confines himself mainly to making a response to his
plea and rejoinder, one would infer from both the
plea and the replication, as well as from the deliver-
ance, that it was the purpose of the Government to
try the defendant on all the charges brought against
him, whether they were included in the extradition
wan'ant or not. Was this the fact ?

Secretary Fish, in his letter of May 22, 1876. reply-
ing to the statement of Lord Derby that her Majes-
ty's Government had been ** assured of the intention
of the United States Government to try Lawrence
for other than the extradition crime, for which he
was surrendered," says: "Her Majesty's Govern-
ment has never been thus assured, and for the very
good reason that the Government of the United
States has never reached any such conclusion, and has
neither expressed nor formed any such intention:"
Foreign Relations of the United States, 1876, p. 243.
This letter expressly reverses the impression one
would receive from the proceedings before Judge
Benedict in the previous March.

Mr. George Bliss was the District-Attorney of the
United States who had the direct charge of this
case; and in his letter of November 22, 1877, written
in response to a previous one of inquiry as to the
facts, he gives a general history of the case from its
inception to its final completion. Upon his author-
ity we make the following statement :

1. Several indictments were found against Law-
rence, charging him with a number of separate and
distinct forgeries, certified copies of some of which
accompanied the requisition upon the British Gov-
ernment for his delivery as a fugitive criminal ; and
afterward, for special reasons, thirteen commis-
sioner's warrants were also sent, charging him with
as many different forgeries. 2. The examination of
the case in England before Sir Thomas Henry re-
sulted in establishing "in complete detail" the
charge of forgery made in one of these warrants, fo'
which he was afterward indicted. 3. Sir Thomaa
Henry certified the charge to the Home oflSce o3
the British Government, and on the basis thereoi
Lawrence was delivered up, and by the agent of tht
United States brought to this country, and, passing
into the hands of the marshal, was committed to
prison. 4. When all the facts in connection with
the proceedings in London became known to the
United States Government, ** care was taken that
Lawrence should not be arraigned upon or asked to
plead to any charge, except the indictment for the for-
gery which was unquestionably proved clear through
before Sir Thomas Henry." 5. As a matter of fact,
he was never arraigned upon any other charge, al-
though his counsel in their plea and for their own
purposes **8et up the contraij." _6.^8qon after



THE ALBANY LAW JOUIINAL.



143



Judge Benedict rendered the decision reported in
13 Blatchf., mpra^ Lawrence pleaded guilty to the
charge specified in the warrant of extradition, under
an arrangement which we give in the following lan-
guage of the District- Attorney:

** Lawrence, I feel at liberty to say, was allowed
to plead guilty to tlie charge on which he was ex-
tradited, under a written agreement to render aid
in convicting others and recovering money for the
€k>venunent, in consideration of which a motion for
sentence was postponed to enable him to furnish the
aid. But the discretion when he should move for
sentence was left wholly in the hands of the District-
Attorney; and it was further arranged that he
(Lawrence) was not to expect a sentence of less than
two years additional to the year he had already been
in prison. * * ♦ ♦ What influenced the Gov-
ernment beyond what apf>eared in the agreement
with Lawrence I never knew, though I could guess
as near as most Yankees. That there was something
beyond the mere aid in convicting others and recov-
ering money, there is no doubt . *'

District- Attorney Woodford, in his letter of
November 19th, 1877, says: »*The dockets of the
Circuit Court show that, on May 25th, 1876, Mr.
Lawrence pleaded guilty and gave bail and was
released, sentence not being moved.'' The court
did not sentence him because no motion was made
to this effect; and the motion was omitted in conse-
quence of the arrangement above described. This
arrangement, though directly made by Mr. Bliss,
was really planned by ** the Cabinet at Washing-
ton," two of whose members came to New York



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