Extra-Tradition of is obvious between Conterminous States, where their military or maritime service is recruited by forced levies raised either by Conscription or by Impress ment. $223. The earliest Treaties of Extra-Tradition Political amongst the Nations of Europe since the fall of the Offenders, Roman Empire appear to have been Treaties between excep tional. Conterminous States such as England and Scotland (anno 1308), France and Savoy (anno 1378), for the surrender of Fugitives from Justice, who were charged with the commission of crimes against the peace of Society, such as murder, piracy, robbery, or forgery. M. Foelix has reviewed the various Treaties which exist upon this subject amongst the Nations of Europe. France, Spain, Portugal, the Papal States, Holland, Sardinia, Belgium, Switzerland, and Great Britain, have severally entered into Treaties with various other Powers for the surrender of Fugitives from Justice who have been guilty of crimes against the person or against property; but they have not extended the engagements of such Treaties to persons accused of Political Offences. On the other hand, Russia, Austria, Prussia, and the various other States which compose the Germanic Confederation, the Two Sicilies, Denmark, Norway, and Sweden, have entered respectively into Treaties for the surrender of Fugitives from Justice, accused of High Treason against the State from which they have escaped. Amongst the American States we find Treaties of the former kind concluded by the United States, and by Brazil, and of the latter kind by Columbia, by Peru, and by Mexico. It will be seen that the surrender of Political Offenders is rather the exception, than the rule of such Treaties. Every Treaty of Extra-Tradition takes effect in re gard to crimes committed before it was concluded, unless its operation shall be expressly restricted, but with regard to the character of any crime alleged as warranting the demand for the surrender of a Fugitive from Justice, all Treaties of Extra-Tradition are stricti juris, being penal in their character and in exception to the Common Law of Nations. Their operation accordingly may not be extended beyond the letter of their stipulations. Extra-Tra part tem § 224 Heffter has very aptly remarked that the Treaties of very fact of the existence of so many special Treaties dition for respecting the Extra-Tradition of Fugitives from Jus- the most tice is conclusive, that there is no such Usage amongst porary. Nations, which constitutes the surrender of such Fugitives upon the demand of a State, whose laws have been violated, a perfect obligation upon other States. It is not unimportant to note, that Treaties of ExtraTradition are for the most part made for a given term of years; as, for instance, the Treaty between Great Britain and the United States, (19 Nov. 179460,) was in this respect limited in duration to twelve years. This Treaty having expired in due course, in respect of the XXVIIth Article, which contained the provision for the Extra-Tradition of criminals, the United States accordingly maintained upon a demand being subsequently made by the British Government for the surrender of Daniel Sullivan, a British Subject, the master of a British Schooner, the Maria, who had run away with the Schooner and her cargo, and carried them into Mount Desart in the State of Maine, that as the engagement of the Treaty was for a limited time and had not been renewed, the United 50 Martens, Recueil, V. p. 686. Art. XXI. provided for the ExtraTradition of all persons charged with the commission of murder States were not under any obligation by the Common Law of Nations to restore the vessel and to deliver up the master and crew who had carried her off Mr. Wirt, the Attorney General of the United States, in the legal opinion which he submitted to his Government, (Nov. 20, 1821,) stated, that he considered there was nothing in the Law of Nations, as explained by the Usage and Practice of the most respectable among them, which imposed on the United States any obligation to deliver up the Fugitives. The Treaty of Washington, sometimes called the Ashburton Treaty, has been subsequently (9 August, 1842) concluded between the United States and Great Britain, under which the Extra-Tradition of the slave Anderson 52, who had escaped from the State of Missouri into Canada, was lately demanded: but there is in this Treaty an express provision that the tenth Article, which provides for the Extra-Tradition of Fugitives from Justice, shall continue in force until one or the other of the parties shall signify its wish to terminate it, and no longer. The Tenth Article is in the following terms: "It is agreed that Her Britannic Majesty and the United States shall, upon mutual requisitions by them or their ministers, officers, or 51 Opinions of the Attorney Generals of the United States, I. P. 391. 52 The Extra-Tradition of Anderson was demanded on a charge of murder. He was not delivered up, as the Court of Common Pleas in Canada, on motion for a Habeas Corpus to discharge him from the custody of the gaoler, to which he had been committed under a Magistrate's warrant, found that there were some informalities in the proceedings before the Magistrate, and directed him to be discharged. The Court of Queen's Bench in Canada had refused to grant a Writ of Habeas Corpus, and the friends of Anderson had thereupon applied to the Court of Queen's Bench in Westminster Hall for the Writ, which was granted. Before, however, the Writ from Westminster Hall could be served in Canada, the Court of Common Pleas in that Province had ordered the discharge of the fugitive. authorities respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within the territories of the other; provided, that this shall only be done upon such evidence of Criminality, as according to the Laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective Judges and other Magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may brought before such Judges or other Magistrates respectively, to the end that the evidence of Criminality may be heard and considered; and if on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining Judge or Magistrate to certify the same to the proper executive authorities, that a warrant may issue for the surrender of such fugitives. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive 53" be The only other Treaty of Extra-Tradition, in regard to Fugitives from Justice, which Great Britain has entered into with a Foreign State, is the Treaty of London, (13 Feb. 1843,) concluded with France for the surrender in certain cases of Fugitives from Justice. By Art. I. "It is agreed that the High Con53 Hertslet, VI. p. 859. Martens, N. R. Gén. III. p. 456. tracting Parties shall on requisitions made in their name through the medium of their respective Diplomatic Agents, deliver up to justice persons who, being accused of the crimes of murder, (comprehending the crimes designated in the French Penal Code by the terms assassination, parricide, infanticide, and poisoning,) or of an attempt to commit murder, or of forgery, or of fraudulent bankruptcy committed within the jurisdiction of the requiring Party, shall seek an asylum, or shall be found within the territories of the other provided that this shall be done only when the commission of the crime shall be so established, as that the laws of the country where the fugitive or person so accused shall be found, would justify his apprehension and commitment for trial, if the crime had been there committed. Consequently, on the part of the French Government, the surrender shall be made only by the authority of the Keeper of the Seals, Minister of Justice, and after the production of a warrant of arrest, or other equivalent judicial Document, issued by a Judge, or other competent Authority in Great Britain, clearly setting forth the facts for which the fugitive shall have rendered himself accountable; and on the part of the British Government, the surrender shall be made only on the report of a Judge or Magistrate duly authorised to take cognisance of the acts charged against the fugitives in the warrant of arrest or other equivalent judicial document, issued by a Judge or competent Magistrate in France, and likewise clearly setting forth the said acts." "The expense of any detention and surrender made in the preceding Article shall be borne and defrayed by the Government in whose name the requisition shall have been made." |