1902 Encyclopedia > Extradition


EXTRADITION. When a person who has committed an offence in one country escapes to another, what is the duty of the latter with regard to him 1 Should the country of refuge try him in its own courts according to its own laws, or deliver him up to the country whose laws he has broken 1 To the general question international law gives no certain answer. Some jurists, Grotius among them, incline to hold that a state is bound to give up fugi-tive criminals, but the majority appear to deny the obliga-tion as a matter of right, and prefer to put it on the ground of comity. And the universal practice of nations is to sur-render criminals only in consequence of some special treaty with the country which demands them.

There are two practical difficulties about extradition which have probably prevented the growth of any uniform rule on the subject. One is the variation in the definitions of crime adopted by different countries. The second is the possibility of the process of extradition being employed to get hold of a person who is wanted by his country, not really for a criminal, but for a political offence. In modern states, and more particularly in England, offences of a political character have always been carefully excluded from the operation of the law of extradition.

Extradition, as stated above, has for the most part been regulated by special treaties. A full list of the extradition treaties between the principal civilized countries will be found in Phillimore's International Law, vol. i. c. 21. Just before the passing of the Extradition Act of 1870, England had only two treaties subsisting—one with France, another with the United States. Both were confirmed by Acts of Parliament. The "Extradition Act 1870" enacts that " where an arrangement has been made with any foreign state, with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that this Act shall apply in the case of such foreign state," subject to any limitations, conditions, or restrictions that may be thought expedient. It is expressly provided—

1. That a fugitive criminal shall not be surrendered for a political offence, or if he prove that his surrender has in fact been required with a view of trying him for a political offence.
2. Provision must be made that a surrendered criminal shall not be tried for any but the extradition crime.
3. Criminals accused or convicted of offences in England shall not be surrendered in extradition until they are discharged.
4. There must be an interval of 15 days between the committal to prison aud the surrender.

An Order in Council under the Act must be in conformity with its provisions, and must provide for the determination of the arrangement after not more than a year's notice.

When the Act applies, a fugitive criminal of a foreign state is liable to surrender. A requisition for that purpose must be addressed to a secretary of state by some person recognized as a diplomatic representative of the foreign state. The secretary of state, unless he thinks the offence is one of a political character, may inform a police magis-trate of the requisition, and require him to issue his warrant for the apprehension of the criminal. The police magistrate, when the criminal is brought before him, shall receive any evidence tending to show that the offence is political, or is not an extradition crime. If the evidence is such as would justify a committal for trial in England, or would prove that the prisoner has been convicted, the magistrate com-mits him to prison, and after fifteen days' interval, or if a habeas corpus is issued after the decision of the court, the secretary of state may by his warrant deliver him over to the representatives of the foreign country. If the prisoner is not removed within two months he must be discharged. The Act applies, with certain modifications, to all British possessions.

" Fugitive criminal " means any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state, who is in, or is suspected of being in, any portion of Her Majesty's dominions. The following is a list of extradition crimes, to be construed according to the law existing in England :—

Murder and attempt and conspiring to murder ; manslaughter ; counterfeiting or altering money, and uttering ; forgery, counter-feiting, and altering what is forged, &c.; embezzlement and larceny, obtaining money and goods by false pretences ; bankruptcy crime : fraud by bailee, banker, agent, &c.; rape; abduction; child-stealing ; burglary and housebreaking ; arson ; robbery with vio-lence ; threats by letter or otherwise, with intent to extort; piracy by law of nations ; _sinking or destroying a vessel at sea, or attempting or conspiring to do so ; assaults on board ship on the high, seas, with intent to destroy life or to do grievous bodily harm ; revolt or conspiracy to revolt by two or more persons on board a ship on the high seas against the authority of the master. The Extradition Act of 1873 adds the following :—Kidnapping and false imprison-ment ; perjury and subornation of perjury ; and indictable offences, not previously named, under the Larceny and other Criminal Acts of 1861 (24 and 25 Vict. c. 96, 97, 98, 99, 100, 101).

The countries with which Englaud has entered into ex-tradition treaties are the following :—Austria, 3d December 1873; Belgium, 30th May 1876; Brazil, 13th November 1872; Denmark, 31st March 1873 ; France, 13th February 1843; Germany, 14th May 1872; Hayti, 7th December 1874 ; Honduras, 6th January 1874 ; Italy, 5th February and 7th May 1873; Netherlands, 10th June 1874; Sweden and Norway, 26th June 1873; Switzerland, 31st March 1874 ; United States, 9th August 1842 (Abdy's edition of Kent's International Law, Cambridge, 1878). The treaties with France and the United States, it will be noticed, are those which were in force before the English Extradition Acts. Difficulties have arisen between this country and the United States as to the effect of the Extradition Act on the subsisting treaty. In 1875 the English Government protested against the trial for a second offence of a criminal who had been surrendered to the United States. The United States Government maintained that the principle of the English Extradition Act (that the surrendered criminal shall not be tried for any offence committed prior to his surrender other than the extradition crime) did not apply to the treaty of 1842, that this treaty could not be newly construed at the will of one of the parties, and that the claim of the English Government made it impossible for the United States to ask or grant extradition under it. The English Government have in the meantime surrendered three fugitive criminals without insisting on their claim. A royal commission on the Extradition Acts is now sitting (1878).

See A Treatise on the Law of Extradition, by Edward Clark, barrister-at-law, 2d edition, London, 1874. (E. B.)

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