CRITICISMS ON EXCEPTIONS.

71

burnt for military purposes, arson would be committed; to CH. XVI. take cattle, &c., by requisition would be robbery. According to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes if those crimes were incidental to and formed a part of political disturbances. I do not wish to enter into details beforehand on a subject which might at any moment come under judicial consideration, and which, whenever it does so, will probably involve questions as delicate as they are important, but the suggestions made above arise upon the face of the enactment.

The second exception to the general rule is not likely, I think, to give rise to any legal question of difficulty. It is simply an expression of the extreme and, in my opinion, illfounded jealousy entertained by English sentiment as to the administration of justice in foreign countries. It might work thus. A in England is claimed by France for theft, and his extradition is granted. He is tried, convicted, and sentenced. During his imprisonment it is discovered that some years before committing theft he committed a cruel murder. We insist that the French shall engage not to try him for the murder until he has been either landed or had an opportunity of landing in England. What good do we get by this? The truth is that the exception is based upon a notion that persons charged with having committed crimes in foreign countries are, if not usually, at least frequently, patriotic people prosecuted for attempting to procure reforms by illegal means. My own feeling is that there ought to be no special presumption in favour of political criminals, and that, at all events, if a man commits a political offence, say in 1880, and in 1881 commits a robbery and flies for it to England, he ought to be given up unconditionally.

Sympathy with political offenders is, I think, carried too far, when, to avoid the possibility that a man's extradition may be demanded in order that he may be tried for a political

72

PROCEDURE FOR EXTRADITION.

CH. XVI. offence, we make it a condition of his surrender that he shall not be tried for any previous offence whatever, except the one for which he was surrendered. Besides, the case of political offenders might easily be provided for specially if it were thought necessary to do so.1

I now pass to the procedure by which the extradition of fugitive criminals is under the acts to be effected. The first step in it may be taken in either of two ways. A requisition must in all cases be made by some person recognised as a diplomatic representative of the state requiring extradition to 2 a Secretary of State (in practice the Home Secretary). The Secretary of State may signify the requisition to one of the Bow Street magistrates, and direct him to issue a warrant for the apprehension of the fugitive criminal. The magistrate on the receipt of the order, and on such evidence as would, in his opinion, justify the issue of the warrant if the crime had been committed in England, may issue his warrant.

<<

On the other hand, any justice of the peace may issue a warrant for the apprehension of any fugitive criminal "on "such information or complaint, and on such evidence as would, in the opinion of the person issuing the warrant, "justify the issue of a warrant if the crime had been com"mitted" within his local jurisdiction in the United Kingdom. If this course is taken the justice who issues the warrant must send a report of the fact, together with the evidence and information and complaint, or certified copies of them, to the Secretary of State, who, if he thinks fit, may order

1 This matter is discussed at length and the conclusion indicated in the text is adopted in the report of the Commission on Extradition published in 1878. The commissioners were Lord Chief Justice Cockburn (who drew the report), Lord Selborne, Lord Blackburn, Mr. Russell Gurney, Lord Justice Baggallay, Lord Justice Brett, Lord Justice (then Mr.) Thesiger, Sir John Rose, myself, Sir W. Harcourt, and Mr. McCullagh Torrens. Mr. Torrens dissented from the report of the rest of the commissioners on this point. 2 S. 7. In the act the words "a Secretary of State are defined to mean one of her Majesty's principal Secretaries of State." What other meaning could they possibly have, and how does the definition differ from the word defined? Is there any use in saying "a dog" means in this act one of the animals commonly called by the name of dog. The expression "a police magistrate" is defined to mean "a chief magistrate of the Metropolitan police courts, or one of the other magistrates of the Metropolitan police"court at Bow Street.' Here the definition was necessary, if the expression "a police magistrate" was to be frequently used in the body of the act, but it would have been simpler and nearly as short to say what was meant in plain words. 3 S. 8, 1.

66

PROCEDURE FOR EXTRADITION.

73

the warrant to be cancelled, and the person apprehended to CH. XVI. be discharged.

The justice is also, when the fugitive criminal is brought. before him, to issue a further warrant, under which he is to be taken before a Bow Street magistrate. The Bow Street magistrate is to discharge the fugitive criminal unless within what the magistrate regards as a reasonable time he receives from the Secretary of State an order stating that a requisition has been made for the surrender of the criminal. In the meantime (apparently) he is to proceed to hear the case in precisely the same manner, and with the same powers, as if the prisoner were charged with an indictable offence committed in England. He is also to receive any evidence tendered to show that the offence is of a political character, or is not an extradition crime. If he thinks the evidence sufficient to justify a committal according to the law of England, and 2"if the foreign warrant authorising the "arrest of such criminal is duly authenticated," the prisoner is to be committed to some prison in Middlesex, where he is to remain for at least fifteen days, in order to give him an opportunity to move for a writ of habeas corpus. He is also to be informed that he has a right to move for such a writ. 3 After the expiration of fifteen days, or after the decision of the court on a return to the writ of habeas corpus or after such further period as may be allowed by the Secretary of State, the Secretary of State may, by a warrant under his hand, order the fugitive criminal (unless he has been released upon the habeas corpus) to be surrendered to any person duly authorised to receive him, and such person may convey him in custody to the country requiring his extradition. If he is not surrendered and conveyed out of the kingdom within two months he may be discharged by a judge upon an application made for that purpose.

Provision is made by ss. 14 and 15 for the proof of depositions or statements on oath taken in a foreign state and of foreign warrants, either by the production of the original, duly authenticated, or by the production of a copy, duly authenticated.

1 S. 9.

2 S. 10.

3 S. 11.

4 S. 12.

74

CH. XVI.

FUGITIVE OFFENDERS' ACT.

These are the important parts of the Extradition Acts. They apply, with some modifications, to all British possessions, and to every part of the United Kingdom, the Channel Islands, and the Isle of Man. The terms of the acts do not forbid the extradition of British subjects for crimes committed abroad, but in many, if not all, of the treaties it is provided that no fugitive criminal shall be surrendered by the country to which he belongs.

1 Extradition treaties have been made with the following nations, the German Empire, Belgium, Italy, Denmark, Brazil, Sweden and Norway, Austria, the United States, France, Holland, Switzerland, Hayti, Honduras, and Spain. There is no treaty with Russia, Greece, or Turkey, nor with any South American State except those mentioned.

2 In the Session of 1881 an act (44 & 45 Vic. c. 69) was passed called the Fugitive Offenders Act, intended to facilitate the apprehension and return of fugitive offenders from any one part to any other part of the Queen's dominions. It is unnecessary to notice its provisions in detail; they are merely administrative, and involve no principle of any interest.

1 Note in Chitty's Statutes to Extradition Act, vol. ii. p. 1041, and see Appendix to Clarke on Extradition, 1874.

Dig. Crim. Proc, ch. xix. arts. 147-163.

CRIMES IN GENERAL.

75

CHAPTER XVII.

OF CRIMES IN GENERAL AND OF PUNISHMENTS.

THE substantive law relating to the definition and punish- CH.XVIL ment of offences is divided, as I have already said, into two great branches, namely, the law relating to criminal responsibility and the law relating to the definition of crimes. The law of criminal procedure consists of a body of regulations intended to procure the punishment of certain specified acts, and its merits depend entirely on the degree to which, and the expense of all kinds at which it attains those objects. With the substantive criminal law it is otherwise. It relates to actions which, if there were no criminal law at all, would be judged of by the public at large much as they are judged of at present. If murder, theft, and rape were not punished by law, the words would still be in use, and would be applied to the same or nearly the same actions. The same or nearly the same distinctions would be recognized between murder and manslaughter, robbery and theft, rape and seduction. In short, there is a moral as well as a legal classification of crimes, and the merits and defects of legal definitions cannot be understood unless the moral view of the subject is understood. Law and morals are not and cannot be made co-extensive, or even completely harmonious. Law may be intended to supplement or to correct morality. There may in some cases be an inevitable conflict between them, but whatever may be their relation, it is essential to a just criticism of the law to understand what may be called the natural distribution of the class of actions to which it applies.