where the debt or damages are one hundred dollars or over; first, where the defendants, or one of them, if more than one, are served with process within the city of Grand Rapids, and this without any reference whatever to the place of residence of either of the parties, plaintiff or defendant; second, where the plaintiff is a resident of the city and the defendants, or one of them, shall be served with process in Knt County.

This case comes under the first provision, as there was no pretense, either in the amended declaration, or on the trial, that plaintiff was a resident of the city. The defendant was a resident of an adjoining county, but was served with process in the city, so that the case comes clearly within the jurisdiction of the court, as conferred by the act already quoted. The constitutionality of that act is the real question to be considered, and although the argument was not so thorough as we might have wished, considering the importance of the question, yet in view of its importance and oft-recurring nature, I think it best that the examination should not be longer delayed.

By the Constitution: "The judicial power is vested in one supreme court, in circuit courts, in probate courts, and in justices of the peace. Municipal courts of civil and criminal jurisdiction may be established by the legislature in cities." Art. 6, § 1. It is conceded that the debates in the constitutional convention throw no direct light upon this question, except that the words "inferior local " were, on motion, stricken from section one, as reported, and the word "municipal" inserted in lieu thereof, leaving this section as it now stands.

Were this word "municipal" stricken from the section, I should still have grave doubts as to the power of the legislature to conter so sweeping and extended a jurisdiction, as has by this legislation been attempted, upon courts established in cities. As the section now stands, it seems very clear to my mind, not from that section alone, but from the entire article relating to the judicial department, that the system therein provided for, of dividing the state into judicial circuits, with power to the legislature to alter the limits or increase the number thereof, with the jurisdiction there conferred upon them and upon justice courts, was considered sufficient for all ordinary purposes; that the system of county courts would no longer be necessary, and they were therefore swept out of existence.

It is also clearly apparent that each circuit, as contemplated in and provided for by the constitution, should include at least one county, and that at no time could there be more than one circuit court in a county, or a circuit court and a county court in the same county. It must, however, have been a matter considered by the members of the constitutional convention, engaged as they were in the preparation of a judicial system permanent in its character, that a necessity might thereafter arise in some circuits to relieve them from a part of their business; that in the growth and development of the state, cities would be springing up, in which, owing to the large manufacturing, mercan

tile and other business carried on and transacted therein, considerable litigation might be expected to arise, and that the circuit court of the county in which such city or cities were situate, would be inadequate to meet the growing demands made upon it in a prompt and satisfactory manner, and that it might therefore at some time become necessary to establish one or more courts in particular cities to relieve the circuit of a portion of the business, and that with this object and purpose in view the clause in question authorizing the legislature to establish municipal courts in cities was inserted.

There was not, however, in my opinion, any intention, by the insertion of this clause, to destroy or materially change or affect the jurisdiction conferred upon the circuit courts, or any of them, or that such municipal courts, when established, should have a jurisdiction, territorially, in any class of cases, co-extensive with the limits of the county, much less of the entire state. They were, in my opinion, intended for the benefit of and to meet the wants of the city in which they were established.

To further test the correctness of these views, and assuming that the jurisdiction sought to be conferred upon this court can be sustained, let us see how far it might be carried, and how it would be likely to operate in practice.

If the true construction of the clause is that, while the court must be established and held in a city, jurisdiction may be conferred upon it in any class of cases, limited only by the discretion of the legislature, what would be the result? That the legislature is not limited as to the number of municipal courts having concurrent jurisdiction it may establish in a city, must be conceded. And if the legislature can authorize service of the original process of such courts, where the plaintiff resides in the city, within the limits of the county, then I know of no limitations to the power of the legislature, under similar circumstances, to authorize service of such process in any and every county in the state. Might the legislature not in this way, draw to and concentrate in the municipal courts of a particular city, a very large proportion of the entire litigation arising, in transitory actions, within the state? Or, suppose again, that a municipal court is established in the city of Lansing, the seat of the state government, where people from all parts of the state have business to transact with the several departments, which necessarily requires their personal presence. In all such cases service within the limits of the city could easily be obtained, and the result would be that no one against whom an action might be commenced would be safe. Actions could be commenced and tried in such a court between parties, where the plaintiff was a resident of one of the southern and the defendant a resident of one of the northern counties in the state, thus compelling parties at a great and unnecessary expense and inconvenience to themselves and their witnesses, to travel long distances in some petty case, that never would have been commenced nearer home; or, if it had, could be defended with but little ex

pense or inconvenience. Indeed, we need not further pursue the investigation in this direction, as it will readily occur to most minds, that abuses of the grossest kinds might easily be perpetrated under such a system, and that the time of such a court could be so engrossed with business from other parts of the state, that the circuit it was designed to relieve would receive no benefit therefrom whatever. To my mind, it seems very clear that a court upon which such a jurisdiction could be conferred, could in no proper sense be called a municipal court, even although established and held within the limits of a city.

It may, however, be said that the legislature would not be at all likely to confer such an extended jurisdiction upon these courts, yet such is the jurisdiction attempted to be given the Superior Court of Grand Rapids. The question is not, however, what the legislature in its wisdom would or would not be likely to do, but what it has the power to do.

I shall not at present refer to the late decisions of this court, or the cases therein cited, touching the jurisdiction of these courts, as they are already familiar. I may, however, refer to somewhat similar constitutional provisions in other states, and the construction placed thereon. In Meyer v. Kalkmann, 6 Cal. 590, where, under the constitution of that state, the legislature had power "to establish such municipal and other inferior courts as may be deemed necessary," it was held that the jurisdiction of a court established under this authority must necessarily be confined to the territory of the municipality, and that an act giving it power beyond this was void. This was not apparently followed in Hickman v. O'Neal, 10 Cal. 294. In this case, the question arose upon an execution issued upon a valid judgment, and it was properly held that the legislature could authorize the court to send its process for such a purpose beyond the limits of the city. The court said: "The superior court was not intended to be an inferior court, in respect to the mode of enforcing its process, but in respect to the character of the subjects of its jurisdiction, and a subordinate relation to other tribunals. The superior court can not, it is true, act upon subjects or persons beyond the limited sphere to which it is restricted, but after it has acted, the mere process by which it is to enforce its judgments is within the scope of legislative power." This distinction I fully concur in. The court, however, in Chipman v. Bowman, 14 Cal. 158, went the whole length of holding that a summons might be served upon a person beyond the limits of the city.

The constitution of Illinois contained a clause giving the legislature power to establish courts as follows: "Provided, that inferior courts may be established by the general assembly in the cities of this state, but such courts shall have a uniform organization and jurisdiction." Under this it was held that an act creating a recorder's court, the jurisdiction of which was limited to the cities territorially, was unconstitutional. The court said that the constitutional provision limited the territorial jurisdiction of the courts to be established

under this proviso, to the cities for which and within which they are established. They were intended to be for the benefit of the cities and to meet their wants, and not that of the adjacent county; that they were designed to dispose of the litigation arising in the cities. This was followed in Covill v. Phy, 26 Ill. 432, where it was held that the common pleas court of the city of Aurora had no jurisdiction to send original process beyond the city limits, nor could such power be constitutionally granted, while as to final process it would be otherwise.

And although under a somewhat similar constitutional provision a contrary doctrine was held in Wisconsin, yet in Atkins v. Fraker, 32 Wis. 510, and Connors v. Gorey, Id. 518, the earlier cases were overruled, and it was held that the jurisdiction could not be extended beyond the limits of the municipality; that all process must be served within the municipality, but that in transitory actions the voluntary appearance of a defendant, residing outside of the municipality, would give the court jurisdiction of his person. The case was tried upon the merits, and no questions of jurisdiction raised.

From a careful consideration of this question I am of opinion that municipal courts established in cities are limited in their jurisdiction, and that the legislature can not confer upon such courts the broad and general jurisdiction attempted by section 13 of the act of 1875.

While then, these courts can not be considered as inferior, yet they are of limited jurisdiction, as to the residence of the parties, and the necessary facts should be set forth in the record showing jurisdiction. Such is the well settled rule as to the circuit courts of the United States, and I can conceive of no good reason why the same rule should not apply here. Turner Admr. v. Bank of North Am., 4 Dall. 11. The case of McCormick v. Sullivant, 10 Wheat. 192, lays down, in my opinion, the correct rule which should be applied to these courts and their proceedings, viz.: that they are of limited jurisdiction, but are not technically inferior courts; their judgments and decrees are binding until reversed, though no jurisdiction be shown of record.

We are, however, of opinion that a party should not be permitted to proceed to trial upon the merits, and then attempt, for the first time, to raise the question of jurisdiction in a case like the present. By pleading the general issue it may be well said that he has submitted himself to the jurisdiction of the court, and that the judgment will be binding.

The other questions raised are of no importance and need not be considered.

The judgment must be affirmed with costs.

IN Vermont, during 1876, 168 divorces were granted, being one divorce to every sixteen marriages. In 123 cases the wife was the petitioner, and in forty-five the husband. Sixty-six were granted for "intolerable severity," eleven for "refusal to support," twenty-four for "adultery," fifteen for "desertion."

Although the tenth article of the extradition treaty of 1842, between the governments of Great Britain and the United States, does not in express terms prohibit the trial and punishment of surrendered fugitives for crimes other than those mentioned in the treaty, yet it is held that the treaty impliedly prohibits the trial of such a fugitive for any other offense than that for which he has been extradited.

T. E. Moss and W. W. Cleary, for appellant; J. G. Carlisle and J. W. Stevenson, for appellee.

LINDSAY, C. J., delivered the opinion of the court:

Smith N. Hawes stood indicted in the Kenton criminal court for uttering forged paper, for embezzlement, and also upon four separate and distinct charges of forgery. He was found to be a resident of the town of London, in the Dominion of Canada, and in February, 1877, was demanded by the President of the United States, and surrendered by the Canadian authorities to answer three of said charges of forgery. As to the fourth charge, the evidence of his criminality was not deemed sufficient, and that alleged offence was omitted from the warrant of extradition. The demand and surrender were made in virtue of, and pursuant to, the tenth article of the treaty concluded August 9th, 1842, between the Kingdom of Great Britain and the United States of America.

The attorney for the Commonwealth caused two of the indictments for forgery to be dismissed. Hawes was regularly tried under each of the remaining two, and in each case a judgment of acquittal was rendered in his favor, upon a verdict of not guilty.

After all this, however, the officers of Kenton county continued to hold him in custody, and finally, on motion of the attorney for the Commonwealth, one of the indictments for embezzlement was set down to be tried on the 6th day of July, 1877. Further action was postponed from time to time, until the 21st of August, 1877, when Hawes presented his affidavit, setting out all the facts attending his surrender, and the purposes for which it was made, and moved the court to continue all the indictments then pending against him, and to surrender him to the authorities of the United States, to be by them returned or permitted to return to his domicil and asylum in the Dominion of Canada. This motion was subsequently modified to the extent that the court was asked to set aside the returns of the sheriff on the various bench warrants under which he had been arrested, and to release him from custody. The

court, in effect, sustained this modified motion, and ordered "that the cases of the Commonwealth of Kentucky against Smith N. Hawes, for embezzlement, and for uttering forged instruments with intent, &c., be 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 this appeal. It is not final in its nature, but under the provisions of sections 335 and 337 of the Criminal Code of Practice, it may nevertheless be reviewed by this court.

It was the opinion of the learned judge (Jackson) who presided in the court below, that the tenth article of the treaty of 1842 impliedly prohibited the government of the United States and the Commonwealth of Kentucky from proceeding to try Hawes for any other offense than one of those for which he had been extradited, without first affording him an opportunity to return to Canada, and that he could not be lawfully held in custody to answer a charge for which he could not be put upon trial. The correctness of this opinion depends on the true construction of the tenth article of the treaty, and also on the solution of the question as to how far the judicial tribunals of the Federal and State governments are required to take cognizance of, and in proper cases to give effect to, treaty stipulations between our own and foreign governments.

Section 2, article 6, of the Federal Constitution declares: "This Constitution and the laws of the United States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

It will thus be seen that with us a public treaty is not merely a compact or bargain to be carried out by the executive and legislative departments of the general government, but a living law, operating upon and binding the judicial tribunals, State and Federal, and these tribunals are under the same obligation to notice and give it effect, as they are to notice and enforce the Constitution, and the laws of Congress made in pursuance thereof.

"A treaty is, in its nature, a compact between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its object is infra-territorial, but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in the courts of justice as equivalent to an act of the legislature whenever it operates of itself, without the aid of any legislative provision." Foster v. Neilson, 2 Pet. 253, per Chief Justice Marshall. When it is provided by treaty that certain acts shall not be done, or that certain limitations or restrictions shall not be disregarded or exceeded by the contracting parties,

the compact does not need to be supplemented by legislative or executive action, to authorize the courts of justice to decline to override these limitations, or to exceed the prescribed restrictions, for the palpable and all-sufficient reason, that to do so would be not only to violate the public faith, but to transgress the "supreme law of the land.”

A different rule seems to have been intimated in the case of Caldwell, 8 Blatch. C. C. Reports, 131, but the real decision rendered in that, as in the subsequent case of Lawrence, 13 Blatch. 295, decided by the same judge, was, that extradition proceedings had pursuant to the treaty under consideration, do not by their nature secure to the person surrendered immunity from prosecution for offenses other than the one upon which the surrender is made, and the intimation in Caldwell's case, that the judiciary may leave it to the executive department to interfere to preserve and protect the good faith of the government in a case like this, is at the most but a dictum.

The tenth article of the treaty of 1842 is as follows: "It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of a forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or ouer magistrates, respectively, to the end that the evidence of criminalty may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive." It will be seen that the trial and punishment of the surrendered fugitive for crimes other than those mentioned in the treaty, is not prohibited in terms, and that fact is regarded as of controlling importance by those who hold to the view that Hawes was not entitled to the immunity awarded him by the court below. But if the prohibition can be fairly implied from the language and general scope of the treaty, considered in connection with the purposes the contracting parties had in view, and the nature of the subject about which they were treating, it is entitled to like respect, and will be as sacredly observed as though it was expressed in clear and unambiguous

terms.

Public treaties are to be fairly interpreted, and the intention of the contracting parties to be ascertained by the application of the same rules of construction, and the same course of reasoning which we apply to the interpretation of private contracts.

By the enumeration of seven well-defined crimes for which extradition may be had, the parties plainly excluded the idea that demand might be made as matter of right for the surrender of a fugitive charged with an offense not named in the enumeration, no matter how revolting or wicked it may be. By providing the terms and conditions upon which a warrant for the arrest of the alleged fugitive may be issued, and confining the duty of making the surrender to cases in which the evidence of criminality is sufficient, according to the laws of the place where such fugitive is found, to justify his commitment for trial, the right of the demanding government to decide finally as to the propriety of the demand, and as to the evidences of guilt, is as plainly excluded as if that guilt had been denied by express language. It would scarcely be regarded an abuse of the rules of construction, from these manifest restrictions, unaided by extraneous considerations, to deduce the conclusion that it was not contemplated by the contracting parties that an extradited prisoner should, under any circumstances, be compelled to defend himself against a charge other than the one upon which he is surrendered, much less against one for which his extradition could not be demanded.

The consequences to which the opposite view may lead, though by no means conclusive against it, are, nevertheless, to receive due and proper weight. It would present a remarkable state of case to have one government saying, in substance, to the other: "You can not demand the surrender of a person charged with embezzlement. My judges or other magistrates have no right or authority, upon such a demand, either to apprehend the person so accused, or to inquire into the evidences of his criminality; and if they should assume to do so, and should find the evidence sufficient to sustain the charge, the proper executive authority could not lawfully issue the warrant for his surrender. But you may obviate this defect in the treaty by resting your demand upon the charge of forgery, and if you can make out a prima facie case against the fugitive, you may take him into custody, and then, without a breach of faith, and without violating either the letter or spirit of our treaty, compel him to go to trial upon the indictment for the non-extraditable offense of embezzlement."

And if this indirect mode of securing the surrender of persons guilty of other than extraditable offenses may be resorted to, or if the demand, when made in the utmost good faith, to secure the custody of a criminal within the provisions of the treaty, can be made available to bring him to justice for an offense for which he would not have been surrendered, then we do not very well see how either government could complain if a lawfully extradited fugitive should be tried and con

victed of a political offense. Prosecutions for the crime of treason are no more provided against by the treaty than prosecutions for the crime of embezzlement, or the offense of bribing a public officer.

Mr. Fish, in his letter of May 22, 1876, to Mr. Hoffman, in reference to the extradition of Winslow, attempts to meet this difficulty by saying that "neither the extradition clause in the treaty of 1794, nor in that of 1842, contains any reference to immunity for political offenses, or to the protection of asylum for religious refugees. The public sentiment of both countries made it unnecessary. Between the United States and Great Britain it was not supposed on either side that guarantees were required of each other against a thing inherently impossible, any more than by the laws of Solon was a punishment deemed necessary against the crime of parricide, which was beyond the possibility of contemplation." But President Tyler, under whose administration the treaty of 1842 was concluded, evidently thought that the guarantees of immunity to political refugees were to be implied from the treaty itself, and not left to rest alone on the public sentiment of the two countries. In communicating the draft of the treaty to the Senate for its ratification, speaking of the subject of extradition, he said: "The article on the subject in the proposed treaty is carefully confined to such offenses as all mankind agree to regard as heinous and destructive of the security of life and property. In this careful and specific enumeration of crimes, the object has been to exclude all political offenses, or criminal charges arising from wars or intestine commotions. Treason, misprision of treason, libels, desertion from military service, and other offenses of similar character, are excluded." This interpretation was cotemporaneous with the treaty itself, and deserves the higher consideration, from the fact that it was contained in a paper prepared by the then Secretary of State, Mr. Webster, who represented the government of the United States in the negotiations from which it resulted. It seems, also, that the extradition article of the treaty was understood in the same way by the British Parliament in 1843. The act of Parliament of that year passed for the purpose of carrying it into effect, directed that such persons as should thereafter be extradited to the United States should be delivered" to such person or persons as shall be authorized, in the name of the United States, to receive the person so committed, and to convey him to the United States, to be tried for the crime of which such person shall be accused." The precise purpose for which the fugitive is to be surrendered is set out in exact and apt language, and the act negatives, by necessary implication, the right here claimed, that the person surrendered may be tried for an offense different from that for which he was extradited, and one for which his surrender could not have been demanded.

The American Executive in 1842, and the British Parliament of 1843, seem to have been impressed with the conviction that the treaty secured to persons surrendered under its provisions an immunity

from trial for political offenses far more stable and effectual than the public sentiment of the two countries. Experience has taught them that in times of intestine strife and civil commotion the most enlightened public sentiment may become warped and perverted, just as it has taught that man is sometimes capable of committing the unnatural crime of parricide, although such a crime seemed impossible to the great Athenian lawgiver. And this view was adhered to by Congress in 1848, when the general law providing for the surrender of persons charged with crime to the various governments with which we had treaty stipulations on that subject, was passed. After setting out the necessary preliminary steps, it was provided, by the third section of that act: "That it shall be lawful for the Secretary of State, under his hand and seal of office, to order the person so committed to be delivered to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crimes of which such person shall be accused." This, like the act of Parliament, declares the purpose of the surrender to be that the alleged offender may "be tried for the crime of which such person shall be accused."

The maxim, expressio unius est exclusio alterus, may with propriety be applied to each of these acts, and read in the light of that maxim, they are persuasive at least of the construction which, up to 1848, the two contracting parties had placed on the tenth article of the treaty.

The act of Congress is, in one view, more important than the British act of 1843. It does not rest alone on the proper interpretation of a particular treaty, and may be regarded as a legislative declaration of the American idea of the fundamental or underlying principles of the international practice of extradition.

The ancient doctrine that a sovereign state is bound by the law of nations to deliver up persons charged with, or convicted of, crimes committed in another country, upon the demand of the state whose laws they have violated, never did permanently obtain in the United States. It was supported by jurists of distinction, like Kent and Story, but the doctrine has long prevailed with us that a foreign government has no right to demand the surrender of a violator of its laws unless we are under obligations to make the surrender, in obedience to the stipulations of an existing treaty. Lawrence's Wheaton's on International Law, p. 233. and authorities cited. As said by Mr. Cushing, in the matter of Hamilton, a fugitive from the justice of the state of Indiana "It is the established rule of the United States neither to grant nor to ask for extradition of criminals as between us and any foreign government, unless in cases for which stipulation is made by express convention." Opinions of Attorneys General, vol. 6, p. 431. From the treatise of Mr. Clark on the subject of extradition, we feel authorized to infer that this is the English theory, but whether it is or not, that government certainly would not, in the absence of treaty stipulations, surrender fugitives to a government