occurred, although many 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 frequently stipulated extradition of ordinary criminals besides that of political fugitives, conspirators, military deserters, and the like. Vattel (ii. § 76) 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 in consequence of this, 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 several 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 of criminals between States is an established fact based on treaties. The present condition of affairs is, however, very unsatisfactory, since there are many hundreds of treaties in existence which do not at all agree in their details. What is required nowadays, and what will certainly be realised in the near future, is a universal treaty of extradition-one single treaty to which all the civilised States become parties.1 Extradi § 329. Some States, however, were unwilling to depend Municipal entirely upon the discretion of their Governments as tion Laws. 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 Laws 2 furnish the basis for the conclusion of extradition treaties. 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 Belgiumn. 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, and they were in many points inadequate. But in 1870 the British Government succeeded in getting Parliament to pass the Extradition Act.3 This Act, which was amended in 1873,4 in 1895,5 and in 1906,6 has furnished the basis for extradition treaties between Great Britain and forty 1 The Second Pan-American Conference of 1902 produced a treaty of extradition which was signed by twelve States, namely, the United States of America, Colombia, Costa Rica, Chili, San Domingo, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, and Nicaragua, but this treaty has not been ratified; see the text in Annuaire de la Vie internationale (1908-1909), p. 461. 2 See Martitz, Internationale Rechtshilfe, i. pp. 747-818, where 333 & 34 Vict. c. 52. 58 & 59 Vict. c. 33. On the 6 6 Edw. vII. c. 15. Object of tion. two other States.1 Luxemburg enacted an extradition law in 1870, and Belgium a new law in 1874. Holland enacted such a law in 1875, Argentina in 1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892, Norway in 1908, Brazil and Russia in 1911.2 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 discretion. 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 3 State. Many States, however, as France and most other States of the European continent, have adopted the principle of never extraditing one of their subjects to a foreign State, but themselves punishing their own subjects 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, one Tourville, a British subject, who, 1 The full text of these treaties is printed by Clarke, op. cit., as well as Biron and Chalmers, op. cit. 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 Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69). 2 See Devogel in R.I., 2nd Ser. xiv. (1912), pp. 187-193. 93. 3 Reg. v. Ganz, (1882) 9 Q.B.D. 4 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 committed abroad by English subjects, and as, according to Article 3 of the Extradition Treaty of 1873 between England and Austria-Hungary, the contracting parties were in no case under an after having 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 during the commission of the criminal act physically present 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 Southampton 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 A conflict between International and Municipal Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Municipal Law of the State from which extradition is demanded. Thus in the case of Salvatore Paladini, whose extradition was demanded by the United States of America from the Italian Government in 1888 for having passed counterfeit money, Italian Municipal Law, which prohibits the extradition of an Italian citizen, came into conflict with Article 1 of the Extradition Treaty of 1868 between Italy and the United States, which stipulates extradition of criminals obligation to extradite their own subjects. Although Great Britain is ready to extradite one of her own subjects for crimes committed abroad, she was formerly in some cases prevented from doing so because the extradition treaties concerned comprised a clause stipulating that nationals should not be extradited. Thus the extradition of Alfred Thomas Wilson, who had committed a theft in Zurich in 1877, and whose surrender was claimed by Switzerland, had to be refused, because the Anglo-Swiss Treaty of 1874 comprised such a clause (see Reg. v. Wilson, (1877) 3 Q.B.D. 42). To avoid such a deplorable result, subsequent extradition treaties between Great Britain and foreign States comprise a clause according to which no party is compelled to extradite nationals. It is thus left to the discretion of the parties whether they will extradite one of their own subjects or not. As late as 1906, the extradition of a British subject had to be refused to France because Article 2 of the Anglo-French Extradition Treaty of 1876 precluded the surrender of nationals. However, by a Convention of 1908 (Treaty Ser. (1909), No. 34), Article 2 of the Treaty of 1876 has been remodelled. 1 See Clarke, op. cit., pp. 177 and 262, who, however, disapproves of this surrender. 2 See Moore, iv. § 594, pp. 290-297. Extraditable without exempting nationals. For this reason Italy refused to extradite Paladini. It is noteworthy that the United States, although they do not any longer press for extradition of Italian subjects who, after having committed a crime in the United States, have returned to Italy, nevertheless consider themselves bound by the above-mentioned treaty of 1868 to extradite to Italy such American subjects as have committed a crime in Italy. Therefore, when in 1910 the Italian Government demanded from the United States extradition of one Porter Charlton,1 an American citizen, for having committed a murder in Italy, extradition was granted by the United States Government, and this action was upheld by the Supreme Court of the United States to which Charlton appealed.2 § 331. Unless a State is restricted by an extradition Crimes. law, it can grant extradition for any crime it 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 those 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 1 See A.J., v. (1911), pp. 182-192; vii. (1913), pp. 580-582, 637-653. 2 Charlton v. Kelly, 229 U.S. 447. See below, § 547 n. |