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Entered, according to act of Congress, in the year eighteen hundred and seventy-one,

In the office of the Librarian of Congress, at Washington.

APR 2 0 1968



The Albany Law Journal.


Puffendorf, Martens, Heffter, Phillimore, and, indeed, all the more recent writers on international law. The

difference between the two doctrines is, that the one ALBANY, JULY 29, 1871.

considers extradition a matter of strict duty, while

the other regards it a matter of national comity. The EXTRADITION OF FRENCH COMMUNISTS.

distinction is important, for, if it be a matter of strict The declaration of President Thiers, that he intends duty, a refusal to comply, on due demand, would to demand from foreign powers the delivery of those afford good ground for a declaration of war. persons who committed the crimes of murder and But however important or interesting the question, arson within the French capital during the supremacy it is one not likely to arise in the case of the comof the commune, has, for obvious reasons, received munists, as we have a treaty with the French (conbut little attention in this country. But, if there be vention of 1843) which provides for extradition in any truth in a telegram recently received from Paris, cases of murder, arson, etc. If it be casus belli to this question of surrendering the fugitive insurgents refuse extradition in case it be a strict duty, which is is likely to prove of some moment to us. In that generally admitted, no one will deny that it is equally telegram, it is stated that Minister Washburne has so when it rests upon treaty obligations. It follows, notified the French government that no person con- therefore, that this treaty applies to the case of the victed of criminal acts in Paris, against the national communists, a refusal on our part to surrender on due government, will be permitted to reside in the United demand would justify the French nation in declaring States. There is, probably, no truth in this report, as it does not appear that our government has taken any It is generally admitted that extradition should not action in the matter, and Mr. Washburne would not be granted in the case of political offenders (Phillivolunteer a statement of that character without more's International Law, p. 443), and it is expressly instructions; but it is by no means improbable that provided in our convention with the French that it our government will be called upon to address itself shall not apply “to any crime or offense of a purely to the subject. A brief survey of the law will not, political character.” There is not, nor in the nature therefore, be out of place.

of things can there be, any exact and arbitrary definiThere has been a remarkable diversity of opinion tion of a “crime or offense of a purely political characamong authorities on international law, as to whether ter," any more than of “fraud” or “undue influence.” a state is bound by the law of nations and inde- Every case of this kind must be judged of in the light pendent of treaty, to surrender fugitives from justice. of its attending circumstances. Chancellor Kent in his commentaries (vol. 1, p. 37) One thing, however, is clear, and that is, that the approves of the doctrine that “every state is bound rebellion of the communists against the government to deny an asylum to criminals, and, upon application of M. Thiers was at most but a political offense. and due examination of the case, to surrender the Rebellion is not a crime within the meaning of the fugitive to the foreign state where the crime was com- extradition act, and if it were, M. Thiers is not in a mitted." “The language of the authorities,” he con- position to consistently demand the surrender of the tinues, “is clear and explicit, and the law and the rebels. His own elevation to power was the result of usage of nations, as declared by them, rest on the a rebellion — the overthrow of a government which plainest principles of justice.” In support of this had existed for twenty years and been approved by doctrine he cites the authority of Grotius, Heineccins, the suffrages of seven and a half millions of FrenchBurlamaqui, Rutherford and Vattel; but there are pub- And by whom was this government overlic jurists of equal authority who maintain the oppo- thrown? Certainly not by the imperialists or modesite doctrine, among whom may be named Voet, rate republicans, but by the very men who afterward constituted the commune. If M. Thiers recognized,


ACQUIESCENCE, as he unquestionably did, the right of these men to The earliest case in this state is Jackson v. Bowen, 1 overthrow a settled government of a fifth of a cen- Caines, 363, A. D. 1803. It was decided that an tury, he certainly cannot claim that they are felons adverse possession of more than twenty years was a now for attempting to overthrow a government not a bar to a recovery in ejectment. The court remarked month old.

that if a man was mistaken in respect to his title, but, Rebellion being only a political offense, it follows under circumstances showing no suspicion of imposiprima facie that every insurgent engaged in rebellious tion or ignorance, acquiesced in a possession by warfare has committed no extradition crime, and another in hostility to it, for the length of time shown every act done in the bona fide prosecution of that in this case, he ought to be concluded. That length warfare, though shocking in itself, is but an offense of time in this case was thirty-six years. against the state. Were the burning of the Tuilleries, In Jackson v. Dysling, 2 Caines, 197, A. D. 1804, the slaughter of the archbishop of Paris and the other the plaintiff's lessor and the defendant's predecessor hostages, the destruction of the public buildings and had forty years before employed two surveyors to run the firing of the city, acts done in the bona fide prose- a line between them, and the defendant's predecessor cution of this warfare? Horrible as these acts by parol agreed to remove his fence to the line which undoubtedly were, it is not impossible to suppose the surveyors found, but there was evidence of a that they may have been resorted to for the same subsequent parol agreement, between the plaintiff's reasons that kindred measures have been frequently lessor and the defendant, in effect rescinding that resorted to in international wars, viz.: for reprisal or agreement. This second agreement was, that if a suit for strategical purposes.

between Klock, defendant's predecessor, and Wills, Again, the commune was for nearly three months should be decided in favor of Klock, the defendant the de facto government of Paris, and exercised the

was to give up possession without suit; but if Wills attributes of sovereignty. It waged war, levied prevailed, the plaintiff's lessor was to abandon his armies, held elections, made laws, collected taxes and claim. No evidence as to the event of that suit was contracted loans. Now, suppose that the murder of given. Judge Spencer thought the first parol agreethe hostages, or any or all of the many horrible acts ment binding, but held it rescinded by the second; done, were done in obedience to or furtherance of the that the plaintiff was bound to show the result of commands of this de facto government, would this that suit; but he held the acquiescence of forty years remove them from the category of ordinary crimes to be conclusive in favor of the defendant. Judge and give them the character of political offense? If | Livingston held the first agreement invalid, because it yes, then the perpetrators of them are clearly not was not acted on, but agreed with Spencer as to the liable to extradition. That there was no sufficient acquiescence. Judge Thompson held the first agreepolitical motive for the acts does not affect the ques- ment not affected by the statute; that the second tion. We have no right to investigate the motive, so agreement had nothing to do with the case as it soon as it is established that the commune was a de stood, or that the defendant should have chosen the facto government, and that these crimes were com- result of the suit; and that the plaintiff was entitled mitted in obedience to the orders of that government. to recover. Judgment of nonsuit.

In Jackson v. Vedder, 3 Johns. 8, A. D. 1808, it was

held, that, where a partition had been made, with a PRACTICAL LOCATION OF DIVISION LINES.

survey and a map, and possession had been taken For many years there have been but two ways in accordingly and held for forty years, the parties were which the citizen could acquire title to lands; first, concluded from contesting the correctness of the by grant; second, by such long possession that a actual location. grant should be conclusively presumed, or as it is In Jackson v. Diefendorf, 3 Johns. 269, A. D. 1808, commonly called, adverse possession. In most, prob- it was held, that, where a location had been made ably all, communities, the length of time necessary to under a deed and survey, and undisturbed possession establish this presumption is fixed by statute. But held accordingly for thirty-eight years, it should prewithin a comparatively recent period, attempts have vail, although subsequently made to appear inacbeen made in the courts, based upon strong and ap- curate. parent equities, to evade the statutes of limitation in In Jackson v. Ogden, 7 Johns. 238, A. D. 1810, the this respect, and give force to the agreements of grant was uncertain and ambiguous as to location, parties in regard to boundary lines, and to their long but there had been an acquiescence of seventeen or continued occupation of premises in a particular man- eighteen years, during which the land had been culner, but for less than the statutory period. It may tivated and become valuable. The plaintiff also had be useful to examine these cases. We will examine purchased under defendant's title, taking a deed t'ie question of location, fixed, first, by mere acqui- recognizing the lines thus located. A majority of the escence; second, by specific agreement; and third, by court held this to be conclusive. But Judge Van equitable estoppel.

Ness dissented, holding that the grants conferred no

title on the defendant, and that such a length of nineteen years the line thus established was held possession was not sufficient to make title. He says, conclusive. But this was expressly placed on the at page 245: “The extent which we have hitherto ground of the agreement. gone is, that when two persons already having a In Jackson v. Freer, 17 Johns. 29, A. D. 1819, the title have settled the line of division between them, proprietors of the patent had partitioned the same by or when one having title has made an actual loca- actual survey, and the lot in question had been imtion, according to what he supposed to be his true proved more than twenty years, and the defendant line, and his neighbors have acquiesced in such loca- | had possessed it fourteen years. A verdict for detion for a considerable length of time, the boundary fendant was sustained. The decision was placed on thus established shall remain undisturbed. But in the ground of the original agreement. this case my brethren go greatly beyond the principle In Rockwell v. Adams, 7 Cowen, 761, A. D. 1827, of our former decisions."

action of replevin, tried in 1825, it does not appear In Jackson v. Douglass, 8 Johns. 367, A. D. 1811, how long the acquiescence had been. The lands where there was no uncertainty as to the true loca- were wild, and no occupation was shown except cuttion of two adjoining lots of land, the single fact that ting of timber, and there had been no agreement as one of the plaintiff's lessors, eight years before, had to the line. But the court held that where the line pointed out a mistaken line, which was fenced ac- has been acquiesced in for a great number of years, cordingly, was not sufficient to conclude the plaintiff. by all the parties interested, it is conclusive evidence

In Jackson v. Gardner, 8 Johns. 394, A. D. 1811, it of an agreement to that line; citing Jackson v. Bowen, was held, that, where A. voluntarily surrendered a Jackson v. Vedder and Jackson v. Diefendorf, and lease and took a new lease, and afterward claimed adding, “In each of these cases erroneous locations under the old lease, he could recover no more land had been made, and they had been acquiesced in (not than what he could prove with absolute certainty was with a full knowledge that they were erroneous, but covered by the old lease; especially after the prem- under a belief that they were correct), for from thirty ises claimed had been in possession of another for to forty years." The court also hold that an actual sixteen years, who had made valuable improvements. practical location will control, although the party

In Stuyvesant v. Dunham, 9 Johns. 61, A. D. 1812, does not know that its effect will be to give him less there was a crooked fence between the parties, which land than he would otherwise be entitled to, and that the plaintiff proposed to the defendant to straighten. there need be no express agreement to abide by the Accordingly, the plaintiff employed a surveyor, who, line. And the court then adopt and sanction Van to the knowledge of the defendant, and without Ness' dissenting opinion in Jackson v. Ogden as the objection on his part, ran a straight line. The plain- | true rule. The verdict for defendant was set aside. tiff removed the fence to this line, and the defendant The action was tried again in 1828 (6 Wend. 467, A. pulled it down. The plaintiff brought trespass. The D. 1821), eleven years acquiescence was shown. The defendant showed that he and his ancestors had been plaintiff had a verdict. Chief Justice Savage said the possessed of the locus in quo for more than twenty-question was the same as in 7 Cowen, adopted the five years, and that during all that time the crooked law there laid down, and denied a new trial. From fence had been the boundary. Also, that before the this decision error was brought, and the case came plaintiff's removal of the fence he objected to it. The up again in 1836, before the court of errors (16 Wend. plaintiff was defeated.

285), and this is the starting point back to which all In Jackson v. Smith, 9 Johns. 100, A. D. 1812, it subsequent decisions go. Chancellor Walworth laid was held that where a survey was made by the direc- down this rule: “Where there can be no real doubt tion and under the observation of the grantee, he as to how the premises should be located, accordcannot, after the lapse of twenty-six years, vary the ing to certain and known boundaries described location. The grant in question was “for the use of in the deed, to establish a practical location difthe gospel,” but the court do not seem to lay any ferent therefrom, which shall deprive the party stress on the peculiar sacredness of the purpose. claiming under the deed of his legal rights, there

In Jackson v. McCall, 10 Johns. 377, A. D. 1813, it must be either a location which has been acquiesced was proved that the immediate predecessor of the les- in for a sufficient length of time to bar a right of sor of the plaintiff had repeatedly confessed that he entry under the statute of limitations in relation to was present when the line was run by the king's sur- real estate; or the erroneous line must have been veyors, and that the line set up by the defendant was agreed upon between the parties claiming the land on the one he referred to. This line had been recog- both sides thereof; or the party whose right is to be nized on both sides for forty-one years. Held, con- thus barred must have silently looked on and seen clusive against the plaintiff.

the other party doing acts, or subjecting himself to In Jackson v. Van Corlear, 11 Johns. 127, A. D. expenses, in relation to the land on the opposite side 1814, the parties had made a new survey, and agreed of the line, which would be an injury to him, and on the line run thereon as the true boundary. Posi- which he would not have done if the line had not tive acts of acquiescence were shown, and after been so located, in which case, perhaps, a grant might

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