Page images

extended to the Judge presiding over ecclesiastical causes, and it is desirable in the interests of Justice that the sources of this want of confidence should be investigated, and that, if possible, all reasonable ground for it should be removed. It may be well to recall the fact that the whole controversy with regard to the judge has arisen by reason of the difference between the statutable mode of appointment and the statutable requirements for the officer so apppointed, and the mode of appointment and canonical requirements of the officer who was Dean of the Court of Arches and Official Principal of the Province of Canterbury (and of Canterbury only), before the passing of the Public Worship Regulation Act.

It may be necessary to pass an Amending Act in order to effect this. There is no reason, in the nature of things, why such an Act should not be passed.

But a measure of still greater importance would still remain for the consideration of the Legislature, viz., an Act for the Codification of the Ecclesiastical Law of England, and for the Simplification of Procedure in Ecclesiastical Causes. Such an Act would not be drawn or passed in a day, but it would entitle those who should bring it forward, whether they succeeded in passing it through Parliament or not, to the high praise of having deserved well of their country by the undertaking of so weighty a Reformatio Legum Ecclesiasticarum.





ITI *T is a misfortune which the Right of Asylum shares in

common with many other rights, that it is capable of being abused. And when some flagrant instance of such abuse occurs, the political scare to which it has given rise is certain to take the shape of clamouring for the abolition of the right, or, at least, for such a modification as would render it practically of no avail. On such occasions it is well to turn aside from the often excited language of continental journalism, and consider with juridical calmness what is the nature and extent of the right thus called in question, and its position in International Law.

These questions are at the present moment of very widespread interest, and giving rise to keen, even acrimonious debate. It might seem needless to premise that we have no sympathy with regicide, any more than with any other form of murder. And it might seem equally unnecessary to premise that the Law of Nations has no desire to shield regicide as such, any more than any other kind of murder. But in the existing state of men's minds, both in this country and on the Continent, it may be as well to have re-affirmed this.

The two questions of Extradition and the Right of Asylum are inextricably intertwined, and must therefore practically always be taken together. For, of course, it is obvious that every case of Extradition is pro tanto the giving up of a portion of the general and ordinarily subsisting Right of Asylum. And on this account, as much as on any other, Extradition is fenced round with precautions in the shape of Treaties specifying most carefully the particular classes of crimes for which, and for no other, it may be allowed. And the fact of the serious controversies which have been carried on between leading nations on the very

point that the person Extradited shall be tried only for the Extradition offence, shows the value which nations, in their calmer moments, feel to be attached to the Right of Asylum as a part of the Territorial Sovereignty and Independence. This is, indeed, to a great extent the root of the matter. If the one right did not involve the other, it is probable, if not certain, that far fewer precautions would have been taken over Extradition Treaties.

The questions before us are in no sense new questions ; they have only come up to the surface once more, under the special circumstances that always do bring them to the surface. In a certain sense they constitute, it might be said, a bête noire of International Law. It is well, at a time when feeling is running so high on the subject in some of the principal European States, that we should be able to call attention to the calm expositions of the various phases of the controversy which may be found in the pages of Dr. Spear, and the veteran jurist Hon. W. Beach Lawrence Llost to us, at a ripe old age, since these words were written), as well as in other American and Continental treatises and reviews, and in the reports of the Institute of International Law, and the Association for the Reform and Codification of the Law of Nations.

It is now several years since the subject was first under discussion in both those valuable societies, which, by a sort of application of the “ bicameral system,” as a recent American writer* happily remarks, are enabled to give a thorough sifting to all questions of the day arising in the Jus inter Gentes. The last meeting of the Institute again took it up, and a distinguished Italian penalist, Dr. Emilio Brusa, formerly professor at Amsterdam, now once more in his native country and professor in the University of Turin, has devoted an article to it in a recent

* American Law Review, March, 1881. Article by Sidney P. Baldwin on the Berne Conference.

number of our able contemporary, the Rivista Penale.* It is well that such varied minds, and from such widely distant lands, should have been led to discuss the question ; for where they agree, the agreement may fairly be presumed to be a matter of principle ; where they differ, the differences may be due to local or temporary causes.

We have already postulated that no State wishes to protect regicide, from any sympathy with it either in the abstract or in the concrete. We may, perhaps, also assume, as a tendency of modern procedure in these matters, that on proof being made that A. B. and C. D. had plotted such a crime in a State where they were temporarily commorant, either as political refugees or as ordinary alien residents, the general protection involved in the right of asylum would be withdrawn to the extent that the individuals concerning whom such proofs were established would be conducted to the frontier. Whether they would be surrendered to a demand for Extradition on such grounds (the crime being ex hypothesi, not an Extraditable one) is a different question, the solution of which, we should maintain, ought not to be attempted in a time of national excitement. The caution with which M. Louis Renault approached this point in the Journal de Droit International Privé,t in an article based partly on the Hartmann Case, we desire to preserve here. That case, though it did not eventually assume the shape of an Extradition precedent,f remains, nevertheless, very

* Vol. XIII., No. I., Oct.-Nov., 1880. Art. I.," L'Istituto di Diritto Internazionale a Oxford e l'estradizione dei delinquenti.” The latest number of the same Review, March-April, 1881, contains further matter on the subject of Extradition, to which we shall refer in the course of the present article.

+ 1880, p. 55, seqq. “ Des Crimes Politiques en Matière d'Extradition." See also the same author's brief summary of the case in the Revue de Droit International (Brussels), 1880, p. 230, seq.

| From a telegram in the Journal des Débats, of 20th April, however, there seems a probability that the Hartmann difficulty is about to be revived, through requisitions made to our Government on the part of Russia. It may, therefore, should the English Courts be satisfied, yet become an Extradition precedent.

full of instruction and much to the point in regard to the kind of difficulties which would surround the new-fashioned system of Extradition recently proposed for adoption. It was claimed that a person temporarily resident in Paris, under the name of Mayer, was in reality a Russian subject named Hartmann, who had been pronounced, in absentia, triable for the common-law crime of damaging the rails of the Moscow-Kursk line, there being at the time, ás between France and Russia, no Extradition Treaty. As a matter of fact it was sufficiently obvious, in that case, that Russia would never have carried matters to the extent to which they were carried, on the resolution of the French Courts that the identity was not proved, if an attempt upon the Emperor's life had not been involved in the fact of the disturbance of the rails. Had the identity of the alleged Hartmann been established to the satisfaction of the Paris Courts, we should almost certainly have seen a repetition of the Lawrence-Winslow controversy, as to the trial of an extradited person for a different crime from that for which the Extradition was granted. For Extradition, of course, it would have been, even though allowed only by comity, and not in accordance with the provisions of a Treaty. The alleged Hartmann, on his release, left France and came to England. As the serious basis of the Hartmann case was Nihilism, combined, as it usually is, with attempted assassination of the Czar, there can be little doubt that the fact of the alleged criminal taking refuge in this country added to the exasperation with which States, not themselves particularly free or constitutional in their government, look upon the white cliffs of Albion. The cry of “ Perfidious Albion !" which used, in days long gone by, to be attributed (chiefly by comic writers) to some of our nearest neighbours, is now really and seriously uttered against us by the semi-official Press of Germany. It would seem, if we were to believe tenth part of what is said about us, that we


« PreviousContinue »