the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions," and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.2 The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.

The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.

(1) Penal Matters. If a native commits a crime against a foreigner, he is generally tried in the local court.

If a foreigner commits a crime against a native, he is generally tried in the consular court of his state.

If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.

If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.

If the crime is a grave one, such as murder,

11 Whart., § 125.

2 By treaties with Japan, going into effect 1899, such courts were abolished in that empire. 29 U. S. Sts. at Large, 848.

sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.

(2) Civil Matters. In cases involving a foreigner and a native, the trial is generally by agents of the two countries.

In cases involving subjects of the same state, their consular court has jurisdiction.

In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.

In cases involving large interests, there is an appeal from the consular to the higher courts of the state.

In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.1

(b) In Egypt mixed courts were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.2

The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls.

11 U. S. Rev. Sts., §§ 4083-4130; 1 Gould and Tucker, 770–772; 2 ibid., 503; Treaties of U. S., 1279, 1288; 1 Whart., § 125.

2 Proclamation of March 27, 1876; 19 U. S. Sts. at Large, 662.

These courts have been the subject of much discussion and great difference of opinion.

§ 65. Extradition

Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.

Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Puffendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.1 The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind. Such cases are not common, however,3 and it is safe to derive the principles from the general practice as seen in treaties.

(a) Persons liable to extradition vary according to treaties. It is the general practice to surrender on

1 "The surrender of fugitives from justice is a matter of conventional arrangement between states, as no such obligation is imposed by the law of nations." In the Matter of Metzger, 5 How. 176, 188. 22 Whart., § 268.

* Snow's “Cases,” 151 ff.; Treaties of U. S., 1289-1293.

demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.1 The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition.

A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.

In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been

followed in many European treaties.

Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. Dur

1 I. Moore, "Extradition," 156.

ing the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crime~ accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.

(b) Even when an accused person is extradited there are limitations as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate laceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.1

(c) The conditions necessary for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the

1 26 U. S. Sts. at Large, 1508; Snow's "Cases," 151 et seq.; 2 Whart., § 270; 1 Moore, "Extradition," 196 ff.; Treaties of U. S., 1289 et seq.; 1 Gould and Tucker, 987.