this point was given in Mure v. Kaye, (1811,) was a judge of very high reputation, and his dictum was not dissented from by the other members of the court.

He said "As to the first point, it has generally been understood that wheresoever a crime has been committed the criminal is punishable according to the lex loci of the country against the law of which the crime was committed, and by the comity of nations the country in which the criminal has been found has aided the police of the country against which the crime was committed in bringing the criminal to punishment. In Lord Loughborough's time the crew of a Dutch ship mastered the vessel, and ran away with her, and brought her into Deal, and it was a question whether we could seize them and send them to Holland, and it was held we might, and the same has always been the law of all civilised countries."

In an opinion given to the Government in 1792, by Serjeant Hill, upon the question of the king's prerogative to expel aliens from the kingdom, the same doctrine is very clearly laid down :- "As to subjects of states in amity, I think the king hath no power over any, if they do not offend his laws, but such as are charged by the states whose subjects they are with high-treason, murder, or defrauding their state, or other atrocious crimes. And as to them, if the sovereign of such state applies to have them delivered up, I think his majesty is, by the constitution, invested with the power of granting or refusing the application, and if granted, may issue a proclamation either to quit his dominions, or else may order them to be apprehended, and sent in safe custody and delivered to such persons as the sovereign of the state to which they belong shall appoint; and if any of them should procure a writ of Habeas Corpus, the

special matter might be returned, and they would not be entitled to be discharged, for this is warranted by the practice of nations, and is therefore not part of the legislative, but of the executive power, which is vested solely in the king, who, as observed by a late learned judge, (1 Bl. Comm. 253,) with regard to foreign concerns is representative of his people, and what is done by the royal authority with regard to foreign powers (he adds) is the act of the whole nation; and the prerogative in this respect has always been taken to be so clear that no foreigner ever contested it in the English courts of justice, and the Habeas Corpus appears to have been designedly so penned as not to interfere with it, for the prohibition in that act, (sec. 9 and 12,) against removing persons from one prison to another, or sending them abroad, is confined to subjects of this realm, whereas all the other provisions of the act extend to all persons and all prisoners, without once mentioning the subjects of the realm, and therefore all the others are intended to extend to aliens, and this not so."*

Upon the authority of E. I. Co. v. Campbell, and Mure v. Kaye, it is laid down, in Chitty on the Criminal Law, (1826,) that "an English magistrate may also cause to be arrested, and committed for trial, an offender against the Irish law, or accused of having perpetrated a crime in a foreign country," (p. 14;) and "if a prisoner, having committed a felony in a foreign country, come into England, he may be arrested here and conveyed and given up to the magistrates of the country against the laws of which the offence was committed," (p. 16.)

These opinions may have been correct, but they have ceased to be law now. If any magistrate were now to arrest a person on this ground, the * Edinb. Review, xlii. 141.

validity of the commitment would certainly be tested, and, in the absence of special legislative provisions, the prisoner as certainly discharged upon application to one of the superior courts.

CHAPTER III.

HISTORY OF THE LAW IN THE UNITED STATES.

FOR various reasons, the record of the Acts passed and the cases decided in the United States is entitled to the first place in a history of the modern law and practice of extradition. At the formation of the Union, the question of the rendition of criminals who fled from one state to another to escape the vengeance of the laws they had transgressed, was one of the difficulties with which the founders of the great republic had to deal. The proximity of Canada, and the length of boundary line which made the flight of the criminal so difficult to intercept, soon raised the question from one of local administration to one of national policy. Men were found quite equal to deal with either. The American judicial bench has been adorned by men who added the lawyer's knowledge to the statesman's thought, and who, bringing both to bear on the questions of public law, have left us works of enduring value. In the matter of extradition, the American law is better than that of any country in the world; and the decisions of the American judges are the best existing expositions of the duty of extradition, in its relations at once to the judicial rights of nations and the general interests of the civilisa

tion of the world. A few words will suffice with regard to the domestic aspect of the question in the Union. Before the Revolution, a criminal who committed a crime in one of the colonies and fled to another was arrested, wherever found, and sent for trial to the place where the offence was committed.* And the second section of the fourth article of the Constitution of the Union, substantially repealing a clause in the fourth article of Confederation, declared, that "A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." In 1791 a doubt was raised by Virginia as to the person to whom the demand should be addressed, and the mode in which it should be made. To remove this doubt, the Act of Congress of 12th February 1793 was passed. That Act made provision for the rendition of fugitives from justice and of fugitive slaves. The first section concerned criminals only, and declared that on demand made, accompanied with a copy of indictment found or affidavit made before a magistrate, charging the person with having committed "treason, felony, or other crime," and certified by the governor or chief magistrate of the demanding state to be authentic, it should be the duty of the executive magistrate of the state to which the person had fled to cause him to be arrested and secured, and notice thereof given, and the person then to be delivered to the agent of the executive making the demand, if such agent should appear within six months. If no such agent appeared, the prisoner should be discharged," (2 Congress, Sess. 2, ch. 7.) This still

* Chief-Justice Tilghman, 10 Serj. & Rawl., 129.

remains the law of the United States. Few questions of any importance have arisen upon it, none that sufficiently affect the general question of extradition to need discussion here.

The first case in America in which the question of the duty of the extradition of criminals, independently of any treaty obligations, was discussed, was that of the Chevalier de Longchamps in 1784.* The circumstances of the case and of the demand of extradition were peculiar. The Chevalier de Longchamps was indicted before the Court of Oyer and Terminer at Philadelphia for threatening bodily harm to M. Marbois, the Consul-General of France in the United States, and Secretary to the French legation, and also for an assault upon him. It appeared that M. de Longchamps went to M. Marbois, at his official residence, and using violent language, threatened to dishonour him, ("Je vous deshonerera, Policon, Coquin,") and two days later, as they were talking together in a public place, he struck with his stick the cane which M. Marbois held in his hand. The jury at first found the prisoner guilty of the assault only, but, being desired by the court to reconsider the matter, they returned a verdict against him on both counts. The President (Washington) and the supreme executive council thereupon informed the judges that the minister of France demanded that M. de Longchamps, having appeared in the uniform of a French officer, and called himself an officer in the service of his majesty, should be delivered up to him for these outrages, to be sent to France. Two questions were submitted to the judges:-1. Could he be lawfully delivered up? 2. If not, whether he ought not to be kept in prison until his most Christian majesty should declare the reparation satisfactory?

*

Respublica v. Longchamps, 1 Dallas, 120.

B