Object of Extradition. enacted a new extradition law in 1874. Holland enacted such a law in 1875, Luxemburg in the same year, Argentina in 1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892. Such States as possess no extradition laws and whose written Constitution does not mention the matter, leave it to their Governments to conclude extradition treaties according to their judgment. And in these countries the Governments are competent to extradite an individual even if no extradition treaty exists. § 330. Since extradition is the delivery of an incriminated individual to the State on whose territory he has committed a crime by the State on whose territory he is for the time staying, the object of extradition can be any individual, whether he is a subject of the prosecuting State, or of the State which is required to extradite him, or of a third State. Many States, however, as France and most other States of the European continent, have adopted the principle never to extradite one of their subjects to a foreign State, but to punish themselves subjects of their own for grave crimes committed abroad. Other States, as Great Britain and the United States, have not adopted this principle, and do extradite such of their subjects as have committed a grave crime abroad. Thus Great Britain surrendered in 1879 to Austria, where he was convicted and hanged,1 one Tourville, a British subject, who, after having tive Offenders Act, 1881 (44 & 45 mitted abroad by English subjects, Vict. c. 169). 1 This case is all the more remarkable, as (see 24 & 25 Vict. c. 100, 9) the criminal law of England extends over murder and manslaughter com and as, according to article 3 of the extradition treaty between England and Austria-Hungary of 1873, the contracting parties are in no case under obligation to extradite their own subjects. murdered his wife in the Tyrol, had fled home to England. And it must be emphasised that the object of extradition is an individual who has committed a crime abroad, whether or not he was physically present during the commission of the criminal act on the territory of the State where the crime was committed. Thus, in 1884, Great Britain surrendered one Nillins to Germany, who, by sending from Liverpool forged bills of exchange to a merchant in Germany as payment for goods ordered, was considered to have committed forgery and to have obtained goods by false pretences in Germany.1 ditable § 331. Unless a State is restricted by an extradition Extralaw, it can grant extradition for any crime as it Crimes. thinks fit. And unless a State is bound by an extradition treaty, it can refuse extradition for any crime. Such States as possess extradition laws frame their extradition treaties conformably therewith and specify in those treaties all the crimes for which they are willing to grant extradition. And no! person is to be extradited whose deed is not a crime according to the Criminal Law of the State which is asked to extradite, as well as of the State which demands extradition. As regards Great Britain, the following are extraditable crimes according to the Extradition Act of 1870 :-Murder and manslaughter; counterfeiting and uttering counterfeit money; forgery and uttering what is forged; embezzlement and larceny; obtaining goods or money by false pretences; crimes by bankrupts against bankruptcy laws; fraud by a bailee, banker, agent, factor, trustee, or by a director, or member, or public officer See Clarke, 1. c. pp. 177 and 262, who, however, disapproves o this surrender. Effectua tion and Condition dition. of any company; rape; abduction; child stealing; burglary and housebreaking; arson; robbery with violence; threats with intent to extort; piracy by the Law of Nations; sinking or destroying a vessel at sea; assaults on board ship on the High Seas with intent to destroy life or to do grievous bodily harm ; revolt or conspiracy against the authority of the master on board a ship on the High Seas. The Extradition Act of 1873 added the following crimes to the list :-Kidnapping, false imprisonment, perjury, and subornation of perjury. Political criminals are, as a rule, not extradited,1 and according to many extradition treaties military deserters and such persons as have committed offences against religion are likewise excluded from extradition. § 332. Extradition is granted only if asked for, and after the formalities have taken place which are of Extra stipulated in the treaties of extradition and the extradition laws, if any. It is effected through the handing over of the criminal by the police of the extraditing State to the police of the prosecuting State. But it must be emphasised that, according to all extradition treaties, it is a condition that the extradited individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted. If an extradited individual is nevertheless tried and punished for another crime, the extraditing State has a right of intervention. 1 See below, §§ 333-340. 2 It ought to be mentioned that the Institute of International Law in 1880, at its meeting in Ox ford (see Annuaire, V. p. 117), adopted a body of twenty-six rules concerning extradition. X PRINCIPLE OF NON-EXTRADITION OF POLITICAL Westlake, I. pp. 247-248-Lawrence, § 133-Taylor, § 212-Wharton, Non-ex Criminals the Rule. § 333. Before the French Revolution' the term How political crime" was unknown in either the theory tradition or the practice of the Law of Nations. And the of Political principle of non-extradition of political criminals was became likewise non-existent. On the contrary, whereas extradition of ordinary criminals was, before the eighteenth century at least, hardly ever stipulated, treaties very often stipulated the extradition of individuals who had committed such deeds as are nowadays termed "political crimes," and such individuals were frequently extradited even when no treaty stipulated it. And writers in the sixteenth and seventeenth centuries did not at all object to such practice on the part of the States; on the contrary, they frequently approved of it.3 It is indirectly due to the French Revolution that matters gradually underwent a change, since this event was the starting-point for the revolt in the nineteenth century against I follow in this section for the most part the summary of the facts given by Martitz, I. c. II. pp. 134-184. Martitz, 1. c. II. p. 177, gives a list of important extraditions of 3 So Grotius, II. c. 21, § 5, No. 5. despotism and absolutism throughout the western part of the European continent. It was then that the term "political crime" arose, and article 120 of the French Constitution of 1793 granted asylum to foreigners exiled from their home country "for the cause of liberty." On the other hand, the French emigrants, who had fled from France to escape the Reign of Terror, found an asylum in foreign States. However, the modern principle of non-extradition of political criminals even then did not conquer the world. Until 1830 political criminals frequently were extradited. But public opinion in free countries began gradually to revolt against such extradition, and Great Britain was its first opponent. The fact that several political fugitives were surrendered by the Governor of Gibraltar to Spain created a storm of indignation in Parliament in 1815, where Sir James Mackintosh proclaimed the principle that no nation ought to refuse asylum to political fugitives. And in 1816 Lord Castlereagh declared that there could be no greater abuse of the law than by allowing it to be the instrument of inflicting punishment on foreigners who had committed political crimes only. The second in the field was Switzerland, the asylum for many political fugitives from neighbouring countries, when, after the final defeat of Napoleon, the reactionary Continental monarchs refused the introduction of constitutional reforms which were demanded by their peoples. And although, in 1823, Switzerland was forced by the threats of the reactionary leading Powers of the Holy Alliance to restrict somewhat the asylum afforded by her to individuals who had taken part in the unsuccessful political revolts in Naples and Piedmont, the principle of non-extradition went on fighting its way. The question as to that asylum was discussed |