Page images
PDF
EPUB

A WEEKLY RECORD

OF TIIE

LAW AND THE LAWYERS.

CONDUCTED BY

ISAAC GRANT THOMPSON.

VOL. IV.

FROM JULY 222 TO DECEMBER 30th, 1871.

ALBANY:
WEED, PARSONS AND COMPANY.

1871.

[ocr errors]

Entered, according to act of Congress, in the year eighteen hundred and seventy-one,

By WEED, PARSONS AND COMPANY,
In the office of the Librarian of Congress, at Washington.

[ocr errors][merged small]

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

war.

Puffendorf, Martens, Heffter, Phillimore, and, indeed, all the more recent writers on international law. The

difference between the two doctrines is, that the one ALBANY, JULY 29, 1871.

considers extradition a matter of strict duty, while

the other regards it a matter of national comity. The EXTRADITION OF FRENCH COMMUNISTS.

distinction is important, for, if it be a matter of strict The declaration of President Thiers, that he intends duty, a refusal to comply, on due demand, would to demand from foreign powers the delivery of those afford good ground for a declaration of war. persons who committed the crimes of murder and

But however important or interesting the question, arson within the French capital during the supremacy it is one not likely to arise in the case of the comof the commune, has, for obvious reasons, received munists, as we have a treaty with the French (conbut little attention in this country. But, if there be vention of 1843) which provides for extradition in any truth in a telegram recently received from Paris, cases of murder, arson, etc. If it be casus belli to this question of surrendering the fugitive insurgents refuse extradition in case it be a strict duty, which is is likely to prove of some moment to us. In that generally admitted, no one will deny that it is equally telegram, it is stated that Minister Washburne has so when it rests upon treaty obligations. It follows, notified the French government that no person con therefore, that if this treaty applies to the case of the victed of criminal acts in Paris, against the national communists, a refusal on our part to surrender on due government, will be permitted to reside in the United demand would justify the French nation in declaring States. There is, probably, no truth in this report, as it does not appear that our government has taken any It is generally admitted that extradition should not action in the matter, and Mr. Washburne would not be granted in the case of political offenders (Phillivolunteer a statement of that character without more's International Law, p. 443), and it is expressly instructions; but it is by no means improbable that provided in our convention with the French that it our government will be called upon to address itself shall not apply “to any crime or offense of a purely to the subject. A brief survey of the law will not, political character." There is not, nor in the nature therefore, be out of place.

of things can there be, any exact and arbitrary definiThere has been a remarkable diversity of opinion | tion of a “crime or offense of a purely political characamong authorities on international law, as to whether ter,” any more than of “fraud” or “undue influence.” a state is bound by the law of nations and inde- Every case of this kind must be judged of in the light pendent of treaty, to surrender fugitives from justice. of its attending circumstances. Chancellor Kent in his commentaries (vol. 1, p. 37) One thing, however, is clear, and that is, that the approves of the doctrine that "every state is bound rebellion of the communists against the government to deny an asylum to criminals, and, upon application of M. Thiers was at most but a political offense. and due examination of the case, to surrender the Rebellion is not a crime within the meaning of the fugitive to the foreign state where the crime was com extradition act, and if it were, M. Thiers is not in a mitted," "The language of the authorities,” he con- position to consistently demand the surrender of the tinues, "is clear and explicit, and the law and the rebels. His own elevation to power was the result of usage of nations, as declared by them, rest on the a rebellion -the overthrow of a government which plainest principles of justice.” In support of this had existed for twenty years and been approved by doctrine he cites the authority of Grotius, Heineccius, the suffrages of seven and a half millions of FrenchBurlamaqui, Rutherford and Vattel; but there are pub- men. And by whom was this government overlic jurists of equal authority who maintain the oppo- thrown ? Certainly not by the imperialists or modesite doctrine, among whom may be named Voet, I rate republicans, but by the very men who afterward

234871

« PreviousContinue »