tion of great lastly, that whilst the regulations for preserving and Navigamaintaining the proper navigation of these rivers must be drawn up and established in common by all the states interested in and connected with them, they cannot be changed or altered by any one separate state'.] When foreigners are admitted into a state upon free and liberal terms, the public faith becomes pledged for their protection. The courts of justice ought to be freely open to them to resort to for the redress of their grievances. But strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law. It has sometimes been made a question, how far one government was bound by the law of nations, and independent of treaty, to surrender, upon demand, fugitives from justice, who, having committed crimes in one country, flee to another for shelter. It is declared by the public jurists, that every state is bound 11th annexe to the treaty. See the Annexe in Hertslet's Treaties, Vol. 1. p. 2, and in Phillimore, Vol. 1. p. 173, n. 3. By the latter the freedom of the Danube has been established. By the treaty of June 4, 1856, made between Great Britain and the United States, and known as the Reciprocity Treaty, the navigation of the St Lawrence, which had been in dispute between those two countries ever since 1826, was settled, -it being agreed in the fourth article of that treaty that the navigation of the St Lawrence and the canals in Canada, the means of communication between the great lakes and the Atlantic Ocean, should be free to the inhabitants of the United States, power being reserved to the British Government to suspend the privilege, and the navigation of Lake Michigan being thrown open to British subjects. (Wheaton's Elements, ed. 1863, Vol. 1. Part I. ch. iv. p. 360, n. 114. United States Statutes, Vol. x. p. 1089, and 18 and 19 Vict. c. 3.) In consequence of a discussion upon certain expressions in the Treaties of 1814 and 1815, relating to the navigation of the Rhine, the convention of March 31, 1831, settled that the navigation of that river should be free from the point where it becomes navigable into the sea, including its two principal outlets, the Leck and the Waal. See for the discussion Wheaton's Elements, Vol. I. pp. 348-352. 1 Heffter, Droit Internat. § 77. 2 See Debate, House of Lords, March 1853, Hansard, 3rd series, cxxiv. p. 1046. Lord Lyndhurst's speech cited at length in Vol. 1. of Phillimore's International Law, pp. 415, 416. 3 Grotius, B. II. ch. xxI. sec. 3, 4, 5, and Heineccius's Com. h. t. Burlamaqui, Part IV. ch. III. sec. 19. Rutherforth, B. II. ch. 9. Vattel, B. II. ch. vI. sec. 76, 77. See Questions de Droit, tit. Etranger, par Merlin, for discussions on this subject in France. rivers. Extra dition of foreigners. dition of foreigners. Extra- to deny an asylum to criminals, and upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime was committed. The language of the authorities is clear and explicit, and the law and usage of nations rest on the plainest principles of justice. It is the duty of the government to surrender up fugitives upon demand, after the civil magistrate shall have ascertained the existence of reasonable grounds for the charge, and sufficient to put the accused upon his trial. The guilty party cannot be tried and punished by any other jurisdiction than the one whose laws have been violated, and therefore, the duty of surrendering him applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive. The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety The act of the legislature of New York, of the 5th of April, 1822, ch. 148, gave facility to the surrender of fugitives, by authorizing the Governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by the laws of the United States, to detain the party for trial on a like charge. Such a legislative provision was requisite, for the judicial power can do no more than to cause the fugitive to be arrested and detained, until sufficient means and opportunity have been afforded, for the dis charge of this duty, to the proper organ of communication with the power that makes the demand'. [In the following cases, for which we are indebted to the last American edition of Kent's Commentaries, will be found the English and American doctrines generally on the subject of extradition:ENGLISH. tion treaties. tion The European nations, in early periods of modern Extradihistory, made provision by treaty for the mutual surrender of criminals seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, and England and France in 1308, and France and Savoy in 1378, and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr Ward' considers these treaties as evidence of the advancement of society in regularity and order. [At the present time Great Britain has the following extradition British treaties in force :-One with Austria, dated 3rd Decem- extradiber, 1873; one with Belgium, 20th May, 1876; one with treaties. Brazil, 13th November, 1872; one with Denmark, 31st March, 1873; one with France, 13th February, 1843; one with Germany, 14th May, 1872; one with Hayti, 7th December, 1874; one with Honduras, 6th January, 1874; two with Italy, one dated 5th February, 1873, the other 7th May, 1873; one with the Netherlands, 10th June, 1874; one with Sweden and Norway, 26th June, 1873; one with Switzerland, 31st March, 1874; and one with the United States, 9th August, 1842, which provides under certain terms specified therein for the mutual surrender of all persons charged with the crime of murder, piracy, arson, robbery, and forgery, or utterance of forged paper. Two remarkable cases in which this latter Treaty has been involved are of somewhat recent date, and deserve a short notice. The first of these was in the matter of John Anderson, a fugitive slave, who having in the Case of United States killed one of his pursuers, and taken refuge in Canadian territory, was claimed as a murderer under the Treaty. The case was carried into two of the Canadian courts. In the Queen's Bench, in answer to the argument for the prisoner, that as he was acting only in defence of his liberty there was no evidence on which to found a charge of murder, even if the alleged offence had AMERICAN. In the matter of Washburn, 4 Johnson, Ch. Rep. 106. Ex parte Holmes, 12 Vermont Rep. 631.] Anderson. Extradi tion. Ander-. been committed in Canada, and that therefore he was not within the terms of the Treaty, it was held that he was son's case. liable to be surrendered' (Mr J. M'Lean dissenting from the opinion of the majority of the Court). Whilst in the Common Pleas it was held that the act committed by him did not come within the terms of the Treaty, and in consequence the prisoner was discharged; but between the appearance of these two opposite judgments an application had been made to and granted by the Court of Queen's Bench in England for a writ of habeas corpus ad subjiciendum, and in consequence of this an act of Parliament was passed, the 25th and 26th Vict. c. 20, by which it was enacted that no writ of habeas corpus should issue out of England into a colony having a court authorized to grant the same. The other case was that of Franz Müller, who being charged with, and eventually found guilty and executed in England for the murder of Mr Briggs, on the North London Railway, near Hackney, had escaped from England and was captured in New York. Some attempt was made by the prisoner's counsel to excite popular feeling in New York in favour of the prisoner, on the ground of the strong anti-federal feeling in England, the defence being that the Treaty was suspended by the action of the British government; but the case was held to be undoubtedly within the act, and the prisoner was at once remanded to the place where the crime was committed*. The Treaty of 1842 was the Case of 1 In the matter of John Anderson, 20 Upper Canada Q. B. Reports, p. 124, and 11 Canada C. P. Reports, 1, In Re John Anderson, and ex parte Dubois 36 LJ., MC. 10 and LR. 2, Charney, 47. 230, Law Journal, C. L., Q. B. 129. 3 See Times newspaper, September 9th and 13th, 1864. 4 [For French views on the subject of extradition reference may be made to Ortolan, Dipl. de la Mer, L. 11. ch. xiv. § 323. Merlin, Répert. du Droit, tit. Souveraineté. Massé, Droit Comm. T. II. § 44, and a note by M. Vergé to Martens' Droit des Gens, ed. 1858, T. 1. pp. 267-273, and Calvo, Le Droit Internat. T. 1. Liv. IX. sect. 1, §§ 374 et seq. For German views, to De Marten, L. III. ch. iii. § 101. Bluntschli, §§ 395-401. Klüber, Droit des Gens, § 86, with M. Ott's note, ed. 1861. Heffter, Droit Internat. § 63. English views:-Phillimore's Internat. Law, Vol. 1. ch. xxi., and Earl Russell's letter to Mr Adams, June 12, 1862. Official Papers (North America), No. 4, p. 164. American:-Wheaton's Elements, ed. 1863, Vol. I. Part II. ch. . tion. subject of considerable discussion in the House of Lords in Extradithe year 1876, rising out of the language of the 3rd section of a general act upon the subject passed in the year 1870, and known as the act for amending the law relating to the extradition of criminals (33 and 34 Vict. c. 52). By this section certain restrictions are placed upon the surrender of criminals-one of them being to the effect that a fugitive criminal is not to be surrendered unless provision is made that he shall not be detained or tried in the foreign state (claiming his surrender), "for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded." The question which gave rise to the debate arose in consequence of the solicitors of a Mr Lawrence having, in July, 1875, informed the Home Office that their client was about to be tried for a second offence in addition to his trial for the offence for which he had been surrendered. Lord Derby, our Foreign Secretary, protested that his surrender would be contrary to the above 3rd section, and contrary to the law and practice of the United States Government in extradition cases. This view, which in the debate in the House of Lords was warmly supported by the Lord Chancellor as well as by the Foreign Secretary, was strenuously opposed by Lords Granville, Grey, Kimberley, and Selborne. In consequence of the attitude of the English Government considerable correspondence ensued between the authorities in London and Washington. On the part of the United States it was contended that the Treaty of 1842 could not be newly construed at the will of only one of the two powers making it; that the attempt to force the United States to adopt such a new and arbitrary construction was a violation of the Treaty which made it impossible for the government of that country either to ask or grant extradition under it, until the claim set up by that of Great Britain was withdrawn, ii. § 13. Story's Conflict of Laws, §§ 626-628. Halleck on International Law, § 28. There are two monographs on the subject of extradition which deserve special reference; one by a French author, Mons. A. Billot, Traité de l'extradition, 1874, the other by an English author, Mr E. Clarke, a Treatise on the Law of Extra. dition, 2nd ed. 1874, both of them, but more especially the latter, exhaustive of the subject.] |