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It was said by Heath, J., in Mure v. Kaye, 4 Taunt. 43, that in Lord Loughborough's time the crew of a Dutch ship mastered the vessel, 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. But I cannot understand how this could have been legally done without the anthority of an Act of Parliament. In former times, however, there was a laxity of practice in many things which would not be allowed now. In 1749 the Court of Excbeqner said : “ The Government may send a person to answer for a crime wherever committed, that he may not involve his country, and to prevent reprisals”: East India Company v. Campbell, 1 Ves. Sen. 247. And in an Opinion given by Attorney General Northey (ante, p. 36), he said : “ As to the question whether her Majesty may not direct Jesuits or Roman priests to be turned out of Maryland, I am of opinion, if the Jesuits or priests be aliens, not made denizens or naturalized, her Majesty may, by law, compel them to depart MaryAland.” But this, certainly, is not sound law; and the direct contrary was decided by the Supreme Court of Madras, in the case of R. v. Symons (2 Strange's Madras Reports, 93), where the Court held that the Goverment of Fort St. George had no inherent power to send two alien Roman Catholic priests, against their will, out of the Presidency. In the able judgment delivered by the Court, they distinctly intimated their opinion that the King, by his prerogative, had no such power; but said : “ Admit that he has it, it would not follow that this Government has it. It is not co-ordinate with his Majesty." In the debate on the Alien Bill, in May, 1818, Sir Samuel Romilly, speaking of the alleged prerogative of the Crown in such a case, said: “ There was only the opinion of Judge Blackstone for such a doctrine."
In a letter I have received from Sir Frederick Pollock, he says: “ When Follett was Solicitor General, and I was Attorney General, one or more slaves got into a boat and rowed to a British vessel of war, where they were received, of course, and where, to use Curran's words, their bodies swelled beyond the measure of their chains, which burst from around them,' and they became free. The American Government demanded them as slaves. The answer was, of course, that we knew nothing of slavery. They then said, “We demand them as felons who have stolen a boat. I remembered an old case in Foster's Crown Law, that to constitute stealing a thing must be taken lucri causâ, and the boat being taken fugæ causâ, there was no theft. We answered accordingly, and the matter ended.” And in a debate in the House of Lords, on February 14, 1842, Lord Campbell said, that when he was Attorney General a slave had escaped from his master in the State of New York, and got to Canada. To facilitate his escape he rode a horse of his master's for a part of the way, but turned him back on reaching the frontier. The authorities of New York preferred a bill of indictment against him before a Now York grand jury for stealing the horse, though it was clear the animus furandi was wanting. The grand jury, however, found a true bill against him for the felony, and he was claimed under the treaty. Lord (then Sir John) Campbell, who was Attorney General, was consulted by our Government, and he gave an opinion that the man onght not to be given up, as no felony had heen committed; and the fugitive was not surrendered : Hansard's Par). Deb. vol. lx. p. 325. The extraordinary similarity between these two cases suggests the idea of some possible confusion between them.
It is an almost universal rule, that no country will surrender political Political fugitives (1). At the end of the war with Antiochus, King of Syria, refugees. the Romans stipulated with him by treaty for the extradition of Hannibal, but he made his escape : Polyb. xxi. 14, cited by Sir Cornewall Lewis, in his able work on Foreign Jurisdiction. Admetus, King of the Molossi, refused to surrender Themistocles. In his 3rd Inst., p. 180, Sir Edward Coke says: “It is holden, and so hath been resolved, that divided kingdoms under several kings in leaglie with one another, are sanctuaries for servants or subjects flying for safety from one king. dom to another, and upon demand made by them are not by the laws and liberties of kingdoms to be delivered.”
In 1798 Great Britain demanded, and ultimately obtained, from the Senate of the free city of Hamburg, the surrender of four political refugees—Irish rebels, one of whom was Napper Tandy: Marten's Causes Célèbres, iv. 106 (2). At the end of the Hungarian insurrection, in 1849, Russia and Austria demanded from the Sublime Porte the extradition of some Polish subjects of Russia and some Hungarian subjects of Austria, who had taken refuge in the territory of Turkey. The British Government was appealed to, and, in one of his despatches, Lord Palmerston, who was then Foreign Secretary, said: “The laws of hospitality, the dictates of humanity, the general feelings of mankind, forbid such surrenders; and any independent Government which of its own free will were to make such surrender, would be deservedly and universally stigmatized as degraded and dishonoured :” State Papers, 1849–50, i. 1295. The Turkish Government nobly refused to surrender the fugitives.
Every extradition treaty with a foreign Power now provides that Extradition neither party shall surrender its own subjects. In the treaty of 1843, Treaties. between England and France, there were no such restrictive words ; but the French Government refused the extradition of the Baron de Vidil, on the ground of his being a Frenchman: see Correspondence respecting the Extradition Treaty, 1866, p. 14. “In the negotiation of treaties stipulating for the extradition of persons accused or convicted of specified crimes, certain rules are generally followed, and
(1) Woolsey's “Internat. Law," s. 79, cites a passage from the oration of Demo. sthenes against Aristocrates, to show the feeling at Athens: katà Tòv koivon árávtar ανθρώπων νόμον, ός κείται τον φεύγοντα δέχεσθαι.
(2) See a full account of the proceedings in that case in “ Extradition Treaties," by F. W. Gibbs. London: Ridgway, 1868.
especially by constitutional governments. The principle of these rules is, that a State should never authorize the extradition of its own citizens or subjects, or of persons accused or convicted of political or purely local crimes, or of slight offences, but should confine the practice to such acts as are by common accord regarded as grave crimes :" Wheaton's Internat. Law, s. 120.
There are only three extradition treaties, to which Great Britain is a party, confirmed by Parliamentthe first, made August 9, 1842, with the United States; the second, February 13, 1843, with France (which . has now expired); and the third, April 15, 1863, with Denmark.
The treaty with the United States has effect given to it by statute 6 & 7 Vict. c. 76, and 8 & 9 Vict. c. 120. In Re Ternan, 5 Best & Smith, 643, S.C. 33 L. J. (M.C.) 201, where some men who had embarked on board an American vessel and seized her, taken her to Honduras, and there abandoned her after selling the cargo, were arrested at Liverpool by direction of the Secretary of State, at the request of the United States Minister, it was held by the majority of the Court, on a writ of habeas corpus being issued, that the case did not come within the terms of the treaty of extradition with the United States, and the Act 6 & 7 Vict. c. 76, providing for its execution. They thought that the treaty was intended to apply only to crimes justifiable by one country and not by the other; that the act of the accused was piracy jure gentium ; and that the word “piracy” in the treaty and Act was meant to apply to acts made piracy by the statute law of America. Cockburn, C.J., was of opinion that the treaty and statute were not necessarily confined to crimes of which the nation making the demand had exclusive jurisdiction. “Within the jurisdiction ” did not necessarily mean “exclusive jurisdiction ;” and if it did, it referred to the area over which the laws of a particular State prevail, and a ship is constructively such a place, and within the jurisdiction of the State. Piracy, jure gentium, would be committed “within the jurisdiction," not exclusive of the demanding nation, if committed on board one of its vessels at sea. The treaty and the Act 6 & 7 Vict. c. 76, include “forgery,” and by a statute of New York, the making of false entries in books of account with intent to defraud is punishable as “ forgery.” A person charged with that offence in New York was arrested here for the purpose of extradition ; but as the offence was not forgery by the law of England, or the law of the United States generally, the Court of Queen's Bench held that it did not come within the Act, and that the prisoner must be released. Blackburn, J., there said: “Two very high contracting parties made a treaty on which the Extradition Act is founded; but we must construe that treaty according to the words used by them when fairly understood, especially when we find both peoples speaking the same language. Forgery is one of the crimes specified, and that must be understood to mean any crimes recognised throughout the United States and in England as being in the nature of forgery. ... The meaning of the New York statute is, the party shall be punished
ning his ethn the America The
as if for forgery:" Re Windsor, 6 Best & Smith, 530. See Anderson's Case, cited in Dana's note (75) to Wheaton, p. 117, where a slave who had killed a white citizen of Missouri, who tried to arrest him while he was making his escape from that State, and who, having fled to Canada, was demanded by the American authorities, under the treaty, as a person “charged with murder.” The Court of Queen's Bench in Canada upheld the requisition, but the Court of Common Pleas thought that the act did not come within the meaning of the treaty, and discharged the prisoner.
In that case the following Opinion was given by the Attorney and Solicitor General, Sir Richard Bethell and Sir William Atherton, on the 28th of March, 1861 : “Upon the assumption that the act proved to have been committed by the fugitive slave Anderson, in the State of Missouri, in killing Digges under the circumstances stated, amounted to murder by the law of Missouri, but would not have amounted to murder if it had been committed in Canada, we are of opinion that the Canadian Government is not bound by the 10th Article of the treaty of Washington (9th of August, 1842) to surrender Anderson, though demanded by the American Government with all due formalities, under the provisions of the treaty. The plain meaning of the article appears to us to be, that the facts proved in support of the particular charge, whatever its nature, must be such facts as, if they had occurred in the harbouring State, would, by the law of that State, have warranted the apprehension and commitment of the perpetrator to take his trial on such charge :" see Re Anderson, 30 L. J. (Q.B.) 129.
Under the statute 6 & 7 Vict. c. 75, for giving effect to the extradition treaty with France, it was held that a warrant to detain a party accused of the crime of fraudulent bankruptcy committed in France, “until he be discharged by due course of law," on the requisition of an agent of the King of the French, was insufficient, and the person imprisoned under it was entitled to his discharge on habeas corpus. Lord Denman, C.J., there said: “We are asked to remand the prisoner on our own authority as charged with a crime; but we have nothing of the crime, unless as it is brought before us by the warrant; or, I should rather say, we have no authority of the kind in such a case. If we could act in the manner suggested, the statute would have been unnecessary. The prisoner must be discharged :" Ex parte Besset, 6 Q. B. 481, 485. Wightman, J., said in that case : “ Where a man is committed for any crime, at common law or by statute, for which he is punishable by indictment, he is to be committed till discharged by due course of law; but when it is in pursuance of a special authority, the terms of the commitment must be special, and exactly pursue that authority :" see Mash's Case, 2 W. Bl. 805.
In a case submitted to the Queen's Advocate (Dr. Twiss), and myself, in 1867, on the question whether a British subject who had committed an offence (alleged to come within the scope of the extradition treaty between Her Majesty and the United States in 1842, and the statute 6 & 7 Vict. c. 76) on board an American ship on the high seas, and who had landed in Calcutta, ought to be given up on a demand of the consul of the United States, we were of opinion that, as a British court of justice would take cognizance of the offence by reason of the nationality of the offender, the case was not within the scope of the treaty or the Act. See Statute 30 & 31 Vict. c. 124, s. 11, which provides that “if any British subject commits any crime or ofTence on board any British ship, or on board any foreign ship to which he does not belong, any court of justice in Her Majesty's dominions which would have had cognizance of such a crime or offence, if committed on board a British ship within the limits of the ordinary jurisdiction of such court, shall have jurisdiction to hear and determine the case as if the said crime or offence had been committed as last aforesaid."
By the treaty with China of the 8th of October, 1843, it is provided that Chinese criminals flying to any of the five ports thrown open to British trade shall be handed over to the Chinese authorities, and that British subjects flying into Chinese territory shall be handed over to the nearest British consular officer.
See on the subject of this note, Clarke's Law of Extradition (London, 1867).