« PreviousContinue »
the arrest was good by the Law of Nations, and according to the Common Law of this Realm. So again, if a Dutchman took up goods at the Port of London, and gave a note of hand for the payment of the same, and then fed into Holland, the vendor might apply to the Lord Mayor of London, and, upon proof of the delivery and sale of the goods, the Lord Mayor would make out a certificate of the same, and send it under the City Seal to Holland, where the authorities of Holland would execute the same upon the fugitive. But in questions of honour or life, judgments of foreign Judges were not always executed, more especially in England, because we refused to punish a man (let his offence be never so heinous) unless he were brought to punishment by a legal trial, and by the production of witnesses vivâ voce to his face. Nevertheless, princes, for the respect they bore each other, and for the good of Justice, although they did not in every case consent to execute or imprison one convicted in another country, yet they were accustomed to yield the natural subject to his natural prince, in order that he might meet (if found guilty) with exemplary punishment, unless the prince to whom the fugitive fled for protection had good reason to think that the latter was unjustly prosecuted; in such case he was not bound to. yield him up, relying on the passage of Deuteronomy, “Thou shalt not restore to his master a bondsman who hath fled to thee.” It is to be noticed that it is on the ancient doctrine, as above set forth, that the rule of Civil Law is founded, that a pirate is justiciable everywhere, no matter to what State he may belong.
Sir Edward Clarke, in his “ Treatise upon the Law of Extradition,” remarks, “the surrender of fugitive criminals is an International duty. It may not be so plainly a matter of right, that the refusal to grant it is to subject a nation to the penalty of war, but such refusal is so clearly injurious to the country which refuses, and to
the whole world, that it is a serious violation of the moral obligations which exist between civilised communities." Monsieur de Vattel (Book II., Chapter 6) says: “ And since he (the Sovereign) ought not to permit his subjects to molest the subjects of another by injuring them, much less if they should audaciously offend Foreign Powers, he should oblige the culprit to repair the damage if it is possible, or punish him in an exemplary manner, or, lastly, according to the case and the circumstances, deliver him up to the offended State that justice may be executed. This is what is generally observed in the case of great crimes, which are equally contrary to the laws and to the safety of all nations. Assassins, incendiaries, and thieves, are seized everywhere, at the requisition of the Sovereign in whose land the crimes have been committed, and delivered to justice. In the case of States who have closer relations of friendship and neighbourly feelings, this courtesy extends even to the case of small offences, which are prosecuted civilly, either by payment of damages, or by a light penalty; the subjects of two adjoining States are reciprocally obliged to appear before the magistrate of the place where they are accused of the offence. On a requisition from this magistrate, which is called Letters Rogatory, they are cited to his Court, and compelled by their own magistrate to attend there."
In 1173, the Ambassadors of the Abassines, were treacherously slain by one of the Templars at Jerusalem. On demand being made to the Grand Master to deliver up the offender, he refused to do so ; but on the other hand, ensured the chastisement of the offender by prescribing punishment to him, and ordering him to be handed over to the Pope.* In the reign of Edward II. some Florentine merchants having been appointed collectors of the King's
• Tyrius lib. 20, cap. 23.
customs and rents in England, Wales, Ireland, and Gascony, fled to Rome, carrying some of the money which they had collected with them. The King sent his Letters of Request to the Pope, to desire that they might be arrested, their persons and goods seized, and sent to England to satisfy the loss which he had sustained, promising nevertheless that they should not lose limb or life. The Pope seems to have acted as requested.* Edmund de la Pool (or Pole), Earl of Suffolk, being attainted by Act of Parliament in the 12th year of Henry VII., fled to Spain; the King of Spain long refused to deliver him up, but eventually did so, on receiving the promise that the Earl should not be put to death. Napper Tandy and other political offenders in 1798, were given up by the Senate of Hamburg to the Government of George III.F In 1819, one Daniel Washburn was brought up on a Habeas Corpus, having been arrested for theft in Canada ; Chancellor Kent held, concomitantly with our proposition, that a State was bound irrespectively of treaties to surrender fugitive criminals, and that a magistrate irrespectively of legislation in that regard, was bound to commit the accused upon proof of the commission of a crime, so as to enable either the home government to extradite the prisoner, or the foreign government to demand it. I In 1864, the United States delivered up one Arguelles to Spain, although there was no Extradition treaty between those countries, nor any Act of Congress relating to the same ; § and in 1873 the Spanish Government delivered up one Bidwell to the British Government, there then being no treaty of Extradition between those Governments. Mr. Seward's course in the Arguelles case was supported by him in a letter to the House Judiciary Committee, June 24th, 1864, in which the following affirmative propositions are laid down and enforced. They are as follows:
* Rott. Roma n. 4 Ed. 2, m. 17 dorso. + 27 How. State Trials 1191.
4 Johns, Ch. R. 106. § U.S. Dipl. Corr., 1864, pt. ii., 60—74.
“1. That 'the object to be accomplished in all these cases is alike interesting to each Government, namely, the punishment of malefactors-the common enemies of every society. While the United States afford an asylum to all whom political differences at home have driven abroad, it repels malefactors, and is grateful to their Governments for undertaking their pursuit and relieving us from their intrusive presence. This doctrine, originally put forth by Attorney-General Cushing in an official opinion dated October 4th, 1853, was quoted and adopted by Mr. Seward.
“ 2. That 'the true portion of the national obligation and authority for the extradition of criminals' may be found ' defined and established by the Law of Nations.'
"3. That 'this obligation and authority under the Constitution of the United States, and in the absence of treaty stipulations and statutory enactments, rests with the President of the United States.'
“4. That 'the sole elements of consideration upon which the Executive is to determine whether or not a proposed case of extradition should or should not call forth the exercise of this power and duty under the Law of Nations, and the precepts of humane and Christian civilisation,' are 'the traits of the alleged criminality as involving heinous guilt against the laws of universal morality, and the safety of human society, and the gravity of the consequences which will attend the exercise of the power in question or its refusal.'"
On the other hand Extradition in the absence of a treaty, has, both under the older authorities, and especially in modern times, been refused. It is evident that the right of a Government to extradite a criminal, if it desire to do so, fully exists, and always has existed, and that this right is the offspring of International Comity for the benefit of civilisation and the maintenance of States. We do not espouse the dicta of those jurists who pronounce Extradition to be a perfect right; far from it. We do however distinctly and emphatically pronounce Extradition to be an imperfect right; but an imperfect right depending entirely on the will of the State, and requiring no compact, convention, or treaty to give it effect. Such is the Law of Nations at the present day. The subject has been clouded by the introduction of compacts, conventions, and treaties-agreements doubtless very useful in themselves, for the purpose of modifying the unwritten law, or for rendering the exercise of the right more easy. Events, however, have occurred, and will occur again, to show that the right of a State to extradite or to Extradition, cannot be limited to the four corners of a piece of paper, and it is time that the governments of the world should begin to realise the true effect of the Extradition treaties which they have entered into. As a statute is ancillary to the Common Law, without destroying the Common Law, so is a treaty ancillary to the Law of Nations, without destroying the Law of Nations. Let our rulers understand this, let them exercise their innate powers of Extradition, under the Comity of Nations, and let them understand that signature to treaties has not wrenched their prerogative from them. When this is better understood, we shall have no more fiascoes, such as have lately been witnessed on the Continent of Europe.