"On Habeas Corpus it appeared the defendant was com"mitted to Newgate on suspicion of murder in Portugal, "which by Mr. Attorney, being a fact out of the King's "dominions, is not triable by commission, upon 35 Henry “ VIII. c. 2, § 1, n. 2, but by a Constable and Marshal; "and the Court refused to bail him," &c. (n). 66 In 1749, the Barons of the Exchequer said: "The "Government may send persons to answer for a crime "wherever committed, that he may not involve his country; "and to prevent reprisals" (o). In 1811, Mr. Justice Heath, sitting in the Common Pleas, observed: "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" (p). 66 When the Scotch demanded the Extradition of Bothwell, Queen Elizabeth promised either to surrender him or send him out of her kingdom. (n) Keble's Rep. 785. (0) East India Company v. Campbell, 1 Vesey's (Sen.) Rep. 247. (p) Mure v. Kaye, 4 Taunton's Rep. 43. As to the power of transmitting criminals from England, in which country they were apprehended, to Ireland, in which country they had committed the offence, see Case of Lundy, 2 Ventris's Rep. p. 314, Case in the 2nd year of Will. and Mary; and King v. Kimberley, 2 Strange's Rep. 848, Case in the 3rd year of Geo. II. It is clear now, however, that in England the Crown has no power to surrender a fugitive criminal, unless authorized by an Act of Parliament, or a treaty sanctioned by Parliament. See The Attorney-General for Hong Kong v. Kwok-a-Sing, Law Reports, 5 P. C. P. 189. It is well known that Charles II. pursued the murderers of his father with unrelenting severity. He entered into a Treaty with Denmark (February 13, 1660), by the 5th article of which the Extradition of any of the regicides, who might take shelter in that country, was stipulated for, and three of the regicides, who had fled to Holland, were surrendered to him by De Witt, at that time Grand Pensioner. Napper Tandy, and some of his comrades concerned in the Irish rebellion of 1795-8, were arrested in Hamburg, and delivered up to the English authorities, an act which was greatly resented by Buonaparte (q). There are two circumstances to be observed, which occur in these and in all other cases of Extradition (†):— 1. That the country demanding the criminal must be the country in which the crime is committed. 2. That the act done, on account of which his Extradition is demanded, must be considered as a crime by both States. It may be further remarked (s), that the obligation to deliver up native subjects would now be denied by all States, even by those which carry the general doctrine of Extradition as to criminals to the farthest limit; and that it is generally admitted that Extradition should not be granted in the case of political offenders, but only in the case of individuals who have committed crimes against the Laws of (9) Martens, Erzählungen merkwürdiger Fälle des neueren Europ. Völkerrechts, ii. 282. Case of James Napper Tandy and another, Howell's State Trials, vol. xxvii. p. 1191. (r) See Attorney-General of Hong Kong v. Kwok-a-Sing, ubi sup. (s) Many States are by the positive laws of their own constitution prevented from delivering up citizens to foreign Powers, e. g. Prussia, Bavaria, Würtemberg, Baden, Hesse, Oldenburg, Brunswick, and Altenburg. Nature, the laws which all nations regard as the foundation of public and private security (†). The result of the whole consideration of this subject is, that the Extradition of criminals is a matter of Comity, not of Right, except in the cases of special convention (u). CCCLXVIII. It may happen that two nations make a request (réclamation) for the delivery of the same offender. The only course which the State harbouring the offender is obliged to pursue, in such a case, is, not to show partiality to either requesting State. According to Martens, the request of the State which claims the offender as attached to her service, e.g. as an officer, or a public functionary, is preferable to the request of the country against which, or more especially in which, the crime has been committed; while, on the other hand, the request of the latter State is preferable to that of the State which claims the offender merely as an individual subject. It is hardly necessary to discuss this nice point of International casuistry, as it is clear that the wisest conduct which a State can adopt is to refuse the request of both applicants (x). (t) Vattel, 1. i. s. 233. Fælix, ubi supra. Wharton's Conflict of Laws, ss. 946, 948. Report of Royal Commission on Extradition, 1878, vide post, p. 550. (α) Κατὰ τὸν κοινὸν ἁπάντων ἀνθρώπων νόμον, ὃς κεῖται τὸν φεύγοντα déxeobal.-Demosth, contra Aristocr. 648. (x) Edinburgh Review, No. lxxxiii. pp. 129, 139, 141. In the case of the Creole, all the judicial authorities in the House of Lords expressed the same opinion. February 1842, Hans. Par. Deb. Cases in the American courts:— In the matter of Washburn, 4 Johnson's Chancery Reports, 106. Rex v. Ball, American Jurist, 297. United States v. Davis, 2 Sumner's Rep. 486. Judge Story's decision. Holmes v. Jenison, 14 Peter's Reports, 540. Ex parte Holmes, 12 Vermont's Rep. 630. Case of José Ferreire Jos Santos, 2 Brochenbourgh's Reports, 492. The result of these cases (for a reference to which I am indebted to a note in Mr. Chancellor Kent's Commentaries, vol. i. pp. 36, 37), seems to CCCLXIX. The right of a State to demand that rebellious subjects shall not be allowed to plot against it in the territory of another State, has been already discussed (y); it cannot, when stretched to its utmost limit, be extended beyond the point of requiring the foreign State to send the fugitive in safety elsewhere; and this demand can only be legally made, when the State has confessed or demonstrated its inability to restrain the fugitive from carrying on plots against the country from which he has fled. be, that the constitution of the United States confers no authority on their public officers or courts to deliver up a fugitive criminal. See, too, Opinions of the (American) Attorneys-General, vol. i. pp. 384, 392, affirming the same proposition, and correcting a former opinion (vol. i. p. 46); Story's Comment. on the Constitution, vol. iii. pp. 675, 676; On the Conflict of Laws, ss. 626, 627; also Commonwealth v. De Longchamps, 1 Dallas, 111, 115. "Différend survenu en 1747, entre la Cour de Suède et celle de la Grande-Bretagne au sujet de l'extradition d'un négociant nommé Springer, accusé de haute trahison et refugié dans l'hôtel du ministre d'Angleterre." Martens, Causes célèbres, dixième Cause. Vide post, vol. ii. part vi. chap. viii. In 1864, however, a Cuban criminal named Arguelles, who had escaped to New York, was surrendered by the President of the United States, at the request of the Spanish Government, although no treaty of extradition then existed between the two Powers. An inquiry on the subject was made in the American Senate and the President sent a reply. In the House of Representatives a resolution condemning the surrender as a violation of the Constitution, and in derogation of the right of asylum, was rejected by a large majority, and the subject was referred to a committee. No further action was taken in the matter by Congress, and no decision as to the legality of the action of the President was given in the courts of the United States. Wharton (Conflict of Laws, s. 943) remarks that the action of the United States in this case "assumes that it is within the province of the chief executive to cause the surrender to a foreign sovereign of a fugitive against whom there is a probable case of the commission of a gross crime recognised as such jure gentium. In other words, extradition, aside from treaties, is within the discretion of the sovereign, to be exercised by him in case when eminent public justice requires." This case appears not to be considered a trustworthy precedent in the United States. See a letter from Mr. Bancroft Davis, written in the matter of one Carl Vogt, July 1873, where a contrary view is upholden (Papers relating to the Foreign Relations of the United States, 1873, vol. i. p. 21). (y) See chap. x. This very important subject underwent a memorable discussion a few years ago in the House of Peers. In a debate which arose upon the question of foreign refugees, most of the Lords, who were either then discharging, or who had discharged judicial functions in the highest tribunals of the realm, delivered their opinions upon this nice question of International Law. Lord Lyndhurst introduced the subject by referring to the great irritation which prevailed at Vienna, and throughout the Austrian dominions, with respect to the alleged conduct, in London, of certain refugees from the Lombardic dominions of Austria. It will be very difficult to abridge without injuring the clear exposition both of our National and International Law laid down by that eminent and learned nobleman. He stated that Law, with respect both to British subjects and to foreign refugees, in these words: 66 "I will first take the case of a British subject. If a "number of British subjects were to combine and conspire together to excite revolt among the inhabitants of a "friendly State-of a State united in alliance with us"and these persons, in pursuance of that conspiracy, were "to issue manifestoes and proclamations for the purpose of "carrying that object into effect; above all, if they were to "subscribe money for the purpose of purchasing arms to 'give effect to that intended enterprise, I conceive, and I "state with confidence, that such persons would be guilty "of a misdemeanor, and liable to suffer punishment by the "laws of this country, inasmuch as their conduct would tend "to embroil the two countries together, to lead to remon"strances by the one with the other, and ultimately, it 66 66 might be, to war. I think my noble and learned friends "who are now assembled here, and who perform so im"portant a part in the deliberations of this House, will not "dissent from the opinion I state with respect to British subjects. Now with respect to foreigners. Foreigners residing in this country, as long as they reside here under "the protection of this country, are considered in the light |