Page images
PDF
EPUB
[ocr errors]

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. 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

[ocr errors]

d, and
y which
Letters
ight be
ent to
tained,
limb or
ested.*
being
'ar of
efused
ng the
apper
en up
nt of
Ought
eft in
] Ollf
Saties
tratê
d to
of a
t to
land
:lles
'aty
ing
red
ing
tS.
ed

[ocr errors][ocr errors][merged small]

by him in a letter to the House Judiciary Committee,
June 24th, 1864, in which the following affirmative propo-
sitions are laid down and enforced. They are as follows:–
“I. 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 Con-
stitution 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 Extradi

tion 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.

[ocr errors][graphic]

[civilisation
Sethe dicta
be a #!
mphatically
t; but an
the State,
to give it
sent day,
|uction of
doubtless
lifying the
the right
will OCCIT
dite Or to
ners of a
its of the
Extradi.
statute is
ying the
Law of
Let OUT
epowers
let them
renched
under.
a lately

[ocr errors]

VI.–THE LAW OF TREASON UNDER THE
ROMAN EMPIRE.

HE conception of Treason formed by the Roman lawyers, as it appears in the titles of the Digest and the Code, has exercised considerable influence, not only upon the jurisprudence of those modern European countries that have risen upon the ruins of the Roman Empire, but upon the law of England as well. It is the object of the present article to discuss the nature of the crime of Treason under the law of the later Roman Empire, to examine the extent of its influence upon modern law, especially the law of England, and to indicate some of the principal points of difference and resemblance. The law of Treason (crimen laesae majestatis) was put upon a final statutory basis by the lex Julia (temp. Julius Caesar), it having, according to Dr. Moyle, previously rested “partly on usage, partly on the Twelve Tables, and a lex Cornelia.” The penalty under the lex Julia was aquae et ignis interdictio (v. Cicero, Philipp. 1, 9 “. . . . . . legibus Caesaris, quae jubent ei, qui de vi, itemque ei, qui majestatis damnatus sit, aqua et igni interdici.”); though we are informed (Moyle, Just. Inst. I, p. 606) that the older penalty of death was restored in the reign of Tiberius. The lex Julia majestatis may be compared with the famous Statute of Treasons (25 Edw. III., c. 2). It fills the same place in Roman criminal jurisprudence as is occupied in English law by the last-named statute, and, like the Statute of Treasons, forms a sort of stock upon which a collection of imperial constitutions and decisions of lawyers—sometimes concealing their origin under the pretended authority of the statute—was grafted at a later period.

« PreviousContinue »