Prussia after the annexation of the formerly Free Town of Frankfort-on-the-Main, was certainly justified in expelling those individuals who, for the purpose of avoiding military service in the Prussian Army, had by naturalisation become Swiss citizens without giving up their residence at Frankfort. how §325. Expulsion is, in theory at least, not a Expulsion punishment, but an administrative measure consisting effected. in an order of the Government directing a foreigner to leave the country. Expulsion must therefore be effected with as much forbearance and indulgence as the circumstances and conditions of the case allow and demand, especially when expulsion is meted out to a domiciled foreigner. And the home State of the expelled, by its right of protection over its citizens abroad, may well insist upon such forbearance and indulgence. But this is valid as regards the first expulsion only. Should the expelled refuse to leave the territory voluntarily or, after having left, return without authorisation, he may be arrested, punished, and forcibly brought to the frontier. tion in §326. In many Continental States destitute for Reconduceigners, foreign vagabonds, suspicious foreigners Contradis without papers of legitimation, foreign criminals who tinction to Expulhave served their punishment, and the like, are sion. without any formalities arrested by the police and reconducted to the frontier. There is no doubt that the competence for such reconduction, which is often called droit de renvoi, is an inference from the territorial supremacy of every State, for there is no reason whatever why a State should not get rid of such undesirable foreigners as speedily as possible. But although such reconduction is materially not much different from expulsion, it nevertheless differs much from this in form, since expulsion is an order Extradi to leave the country, whereas reconduction is forcible conveying away of foreigners. The home State of such reconducted foreigners has the duty to receive them, since, as will be remembered,2 a State cannot refuse to receive such of its subjects as are expelled from abroad. Difficulties arise, however, sometimes concerning the reconduction of such foreign individuals as have lost their nationality through long-continued absence 3 from home without having acquired another nationality abroad. Such cases are a further example of the fact that the very existence of stateless individuals is a blemish in Municipal as well as International Law.4 IX Hall, ff 13 and 63-Westlake, I. pp. 241-251-Lawrence, §§ 132-133 -Phillimore, I. §§ 365-389D-Twiss, I. § 236—Halleck, I. pp. 257– 268-Taylor, §§ 205-211-Walker, § 19-Wharton, II. §§ 268-282 Wheaton, §§ 115-121-Bluntschli, §§ 394-401-Hartmann, § 89Heffter, § 63-Lammasch in Holtzendorff, III. pp. 454-566Liszt, § 32-Ullmann, §§ 113-117-Bonfils, Nos. 455-481-Despagnet, Nos. 289-315-Pradier-Fodéré, III. Nos. 1863-1893— Rivier, I. pp. 348-357-Calvo, II. §§ 949-1071-Martens, II. §§ 9198-Spear, "The Law of Extradition" (1879)—Lammasch, "Auslieferunsgspflicht und Asylrecht " (1887)-Martitz, "Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and 1897)—Moore, "Treatise on Extradition" (1891)-Hawley, "The Law of International Extradition" (1893)-Clark, "The Law of Extradition" (3rd ed. 1903)-Biron and Chalmers, "The Law and Practice of Extradition" (1903)—See the French, German, and Italian literature concerning extradition quoted by Fauchille in Bonfils, No. 455. § 327. Extradition is the delivery of a prosecuted legal duty. individual to the State on whose territory he has tion no 1 Rivier, I. p. 308, correctly dis- See above, § 302, No. 3. many States have, either by special treaties or in their treaties of commerce, friendship, and the like, stipulated proper treatment of each other's destitute subjects on each other's territory. committed a crime by the State on whose territory the criminal is for the time staying. Although Grotius holds that every State has the duty either to punish itself or to surrender to the prosecuting State such individuals within its boundaries as have committed a crime abroad, and although there is as regards the majority of such cases an important interest of civilised mankind that this should be done, this rule of Grotius has never been adopted by the States and has, therefore, never become a rule of the Law of Nations. On the contrary, the States have always upheld their competence to grant asylum to foreign individuals as an inference from their territorial supremacy, those cases excepted which fall under the stipulations of special extradition treaties, if any. There is, therefore, no universal rule of customary International Law in existence which commands 2 extradition. tion arisen. § 328. Since, however, modern civilisation de- Extradimands categorically extradition of criminals as a rule, Treaties numerous treaties have been concluded between the how single States stipulating the cases in which extradition shall take place. According to these treaties, individuals prosecuted for more important crimes, political crimes excepted, are actually always surrendered to the prosecuting State, if not punished locally. But this solution of the problem of extradition is a product of the nineteenth century only. Before the eighteenth century extradition of ordinary criminals 1 II. c. 21, § 4. 2 Clarke, l.c. pp. 1-15, tries to prove that a duty to extradite criminals does exist, but the result of all his labour is that he finds that the refusal of extradition is "a serious violation of the moral obligations which exist between civilised States" (see p. 14). But hardly occurred, although the States used then frequently to surrender to each other political fugitives, heretics, and even emigrants, either in consequence of special treaties stipulating the surrender of such individuals, or voluntarily without such treaties. Matters began to undergo a change in the eighteenth century, for then treaties between neighbouring States stipulated frequently the extradition of ordinary criminals besides that of political fugitives, conspirators, military deserters, and the like. Vattel1 is able to assert in 1758 that murderers, incendiaries, and thieves are regularly surrendered by neighbouring States to each other. But general treaties of extradition between all the members of the Family of Nations did not exist in the eighteenth century, and there was hardly a necessity for such general treaties, since traffic was not so developed as nowadays and fugitive criminals seldom succeeded in reaching a foreign territory beyond that of a neighbouring State. When, however, in the nineteenth century, with the appearance of railways and Transatlantic steamships, transit began to develop immensely, criminals used the opportunity to flee to distant foreign countries. It was then and thereby that the conviction was forced upon the States of civilised humanity that it was in their common interest to surrender ordinary criminals regularly to each other. General treaties of extradition became, therefore, a necessity, and the single States succeeded in concluding such treaties with each other. There is no civilised State in existence nowadays which has not concluded such treaties with the majority of the other civilised States. And the consequence is that, although no universal rule of International Law commands it, extradition 1 II. § 76. of criminals between the States is an established fact based on treaties. Extradi § 329. Some States, however, were unwilling to Municipal depend entirely upon the discretion of their Govern- tion Laws. ments as regards the conclusion of extradition treaties and the procedure in extradition cases. They have therefore enacted special Municipal Laws which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These Municipal Laws1 furnish the basis for extradition treaties to be concluded. The first in the field with such an extradition law was Belgium in 1833, which remained, however, for far more than a generation quite isolated. It was not until 1870 that England followed the example given by Belgium. English public opinion was for many years against extradition treaties at all, considering them as a great danger to individual liberty and to the competence of every State to grant asylum to political refugees. This country possessed, therefore, before 1870 a few extradition treaties only, which moreover were in many points inadequate. But in 1870 the British Government succeeded in getting Parliament to pass the Extradition Act. This Act, which was amended by another in 18733 and a third in 1895,4 has furnished the basis for extradition treaties of Great Britain with thirty-five other States. Belgium 1 See Martitz, Internationale Rechtshilfe, I. PP. 747-818, where the history of all these laws is sketched and their text is printed. 2 33 & 34 Vict. c. 52. 336 & 37 Vict. c. 60. 458 & 59 Vict. c. 33. On the history of extradition in Great Britain before the Extradition VOL. I. Act, 1870, see Clarke, pp. 126--166. 5 The full text of these treaties is printed by Clarke, as well as Biron and Chalmers. Not to be confounded with extradition of criminals to foreign States is extradition within the British Empire from one part of the British dominions to another. This matter is regulated by the FugiCC |