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A TREATISE

UPON

THE LAW OF EXTRADITION.

CHAPTER I.

THEORY OF THE SUBJECT.

THE subject of extradition has been discussed far more in its political than in its legal aspects. National interest, prejudice, or passion has always governed the deliberations of senates, and has sometimes affected the decisions of the courts. An attempt is made in this volume to ascertain the true principles of the question, and, as briefly as correctness will permit, to trace the history of the law in the United States, England, Canada, and France, and to indicate the rules of practice observed in each of those countries.

In discussion upon this subject, it has been often said that the majority of jurists deny the existence of any right to demand extradition. That this assertion is incorrect, will be seen by an examination of the opinions of some of the most eminent of early or recent writers.

Beginning with the great jurist who may be considered the founder of modern public law, we

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find Grotius expressing a very clear opinion as to the existence of this duty :

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"Punishment, as we have said, according to the Natural Law, may be inflicted by any one who is not open to the like charge; though, no doubt, it is in conformity with civil institutions, that the delicts of individuals with regard to their own community should be left to that community, and to its rulers, to be punished or passed over, as they choose. But there is not the same full power left to them in delicts which in any way pertain to human society in general; for these other states may prosecute, as in particular states there is a prosecutor of certain offences which any one may put in motion; and much less have they such power in offences by which another state or its rulers are specially assailed, and in which, consequently, the state or the ruler have, on account of their dignity or security, a right of executing punishment as we have said. This right is not to be impeded by the state in which the offender lives, or its rulers.

"But as since states are not accustomed to permit another state to enter their territory armed for the sake of executing punishment, nor is that expedient, it follows that the city where he abides who is found to have committed the offence ought to do one of two things,-either itself being called upon, it should punish the guilty man, or it should leave him to be dealt with by the party which makes the demand; for this is what is meant by giving up, so often spoken of in history.

All which passages, however, are to be understood, that the people or king are not strictly bound to give up the person, but, as we have said, to punish It is a disjunctive obligation,"

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(bk. 2, c. 21, §§ 3, 4.)

Vattel lays down the same principle of a duty

either to punish the fugitive criminal, or to deliver him up to the injured state, in very explicit terms, and adds:

"This is pretty generally observed with respect to great crimes, which are equally contrary to the laws and safety of all nations. Assassins, incendiaries, and robbers are seized everywhere, at the desire of the sovereign in whose territories the crime was committed, and are delivered up to his justice. The matter is carried still further in states that are more closely connected by friendship and good neighbourhood. Even in cases of ordinary transgressions, which are only subjects of civil prosecution, either with a view to the recovery of damages, or the infliction of a slight civil punishment, the subjects of two neighbouring states are reciprocally obliged to appear before the magistrate of the place where they are accused of having failed in their duty. Upon a requisition of that magistrate, called Letters Rogatory, they are summoned in due form by their own magistrates, and obliged to appear. An admirable institution, by means of which many neighbouring states live together in peace, and seem to form only one republic," (bk. 2, § 76.)

The principal authority quoted against the existence of this right is Pufendorf.* The citation,

*

Story says ("Conflict of Laws," p. 879) that "Pufendorf explicitly denies it as a matter of right." But in the edition of 1865 this note is appended :-"For this reference to Pufendorf's opinion I must rely on Burlamaqui, (part 4, c. 3, §§ 23, 24,) not having been able to find it in his Treatise on the Law of Nations.' The only reference to the point which I have met with in that work is in book 8, c. 3, §§ 23, 24." In this statement and note there are four errors. Pufendorf does not explicitly deny the right. Burlamaqui does not say so. The passage, book 8, c. 3, §§ 23, 24, does not relate to the matter at all. The passage given in the text, book 8, c. 6, § 12, does expressly refer to it. Sir G. C. Lewis corrected part of the error, and referred to the proper section in the sixth chapter of Pufendorf's eighth book. ́But, strangely enough, he referred to

however, is erroneous, as will be seen from the following passages:

"Among the several ways the governors of a commonwealth are involved in wars from the injuries committed by their subjects, these two, I think, will most deserve our consideration-viz., sufferance and reception. . . . The guilt of a crime before it hath been judicially tried remains upon them who commit it; but after sentence is passed upon it, they are the criminals who neglect to put the law in execution. The case of reception, and how far the commonwealth gives reason for war against itself by receiving and defending persons who have injured others, may be seen at large in Grot., lib. 2, c. 21, §§ 3, 4, 5, 6."*

The only passage which can possibly be quoted in support of the assertion that Pufendorf denies the duty of extradition, is to be found in the least known of all his works, the treatise, "De Officio

that passage as an authority for the statement that Pufendorf holds that a state is only bound by treaty engagements, or by some special circumstance, to surrender a fugitive criminal, a proposition which the passage he quotes does not support in the least, ("On Foreign Jurisdiction," &c. 37.) Story's mistake has been copied with persistent carelessness. In Wheaton, (edition 1863,) Phillimore, (1854,) and Fœlix, the reference to Pufendorf is "Elementa, lib. 8, c. 3, §§ 23, 24." In Kent (1854) and Halleck (1861) no reference to Pufendorf is given. Woolsey (1864) gives no references at all. Egan was content to quote Story without verifying. The references of Wheaton, Phillimore, and Foelix are incorrect. The book Pufendorf published in 1660, entitled "Elementorum Jurisprudentiæ Universalis," libri ii., (Cambridge, 1672,) only contains two books; the first comprising twenty-one definitions; the second, two axioms and five observations. Of course, no such passage as "lib. 8, c. 3, §§ 23, 24" can be found in it. The true reference to Pufendorf is given in the text.

"Law of Nature and Nations." Trans. by Basil Kennett, D.D., Lond. 1749. "Circa receptum autem, et quatenus civitas causam belli contra se præbeat, recipiendo et defendendo eos qui in alios deliquerunt, plenedocet. Grotius, d. 1. §§ 3, 4, 5, 6.” "De Jure Naturæ et Gentium." Ed. Hertius and Barbeyrac. Frankfort and Leipsic, 1744.

Hominis et Civis juxta Legem Naturalem." After saying that a sovereign state is presumed to have power over its subjects, and that knowingly suffering them to commit crimes it shares their guilt; he adds, that the liability to war which a state incurs when it receives and protects fugitive criminals arises rather from special compact than from any general obligation.*

This is very far short of a denial of the duty of extradition; but upon this Burlamaqui says that it was without sufficient reason that Pufendorf made this qualification, and that the rule laid down by Grotius is well established. He himself calls it, "une obligation commune et indispensable."+

Paul Voet is another publicist whose authority has been quoted in favour of considering the rendition of criminals a matter strictly of comity, not of right. It is clear, from his writings, that the passages which have been made to bear this interpretation were caused by his strong opinion in favour of the right of any magistrate to try a criminal found in his jurisdiction, wherever the crime may have been committed. He holds that the magistrate is bound to punish such crimes; that they must be judged by the laws of the place where they were committed; but that, in assigning punishment, the magistrate is not bound to consider either the criminal's domicile, or the place of the crime. He should punish according to the quality of the fault, and the nature of the punishment imposed on that fault in his territory;

"Ut tamen qui noxium ad se confugientem pœnæ duntaxat declinandæ causa recepit et protegit, bello peti possit; id magis ex peculiari pacto inter vicinos et socios, quam communi aliqua obligatione provenit; nisi iste profugus apud nos hostilia in eam civitatem quam deseruit machinetur," (lib. 2, c. 16.) "Principes du Droit de la Nature et des Gens." Par J. J. Burlamaqui. Ed. Dupin. Paris, 1821. 5 vols. Droit des Gens," (part 4, c. 3, § 9.)

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