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the whole world, that it is a serious violation of the moral
* 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
by him in a letter to the House Judiciary Committee,
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.
VI.–THE LAW OF TREASON UNDER THE
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.