7. If, pending the demand of extradition, the act which has prompted it has lost the character of a crime, and become a misdemeanour, or if the accusation has been annulled (s'il est intervenu un arrêt de non lieu), the minister should be informed without delay, that the demand may be withdrawn, or the accused set at liberty and conducted to the frontier,

8. When the accused is delivered up, he is at first in the charge of the administrative authority, then received by the Procureur-Général, who takes measures for sending him to the place where the accusation should be prosecuted.

9. The Government has the exclusive right of deciding upon demands of extradition made by foreign Governments, although the magistrates of these countries sometimes forward warrants, orders of arrest, or records of conviction, directly to the magistrates of the French tribunals; these documents should immediately be transmitted to the department of the Ministry of Justice.

10. In France the execution of a Royal Decree of Extradition is intrusted to the administrative authority.

11. If the foreigner whose extradition has been granted is at the time under accusation, or undergoing a sentence, the execution of the order of extradition must be postponed until the decision upon the charge or the expiration of the sentence. Nevertheless, the extradition cannot be hindered by anything but the requirements of public justice, as, for instance, if the foreigner were detained for debt.

The Circulars upon Extradition of 6th October 1810,

12th June 1816, and 31st July 1821, were abrogated by that of 1841.

The rule that a prisoner surrendered upon a charge of crime, but accused also of misdemeanour, should only be tried for the crime, had been acted upon in the case of Dermenon, who was given up by Geneva in 1840 on a charge of fraudulent bankruptcy. The renvoi of the chambre des mises en accusation ordered that, if acquitted on this charge, he should be tried for simple bankruptcy and breach of trust. He was so acquitted, and the Minister of Justice held himself bound to re-deliver him to Geneva. That state refused to receive him; but the question whether this operated as a new extradition, or whether he ought to be liberated at the French frontier, was held to be purely a political matter.*

The rule was also recognised in the case of Sauve, a deserter from the French army, accused of theft. He was delivered up by Switzerland on the express condition that he should not be tried as a deserter, but only for the theft for which he had been condemned par contumace. It was held in this case, that the judges empowered, according to the information, to judge of the misdemeanour as well as the crime, ought to declare themselves without jurisdiction over the former. Sauve was tried and condemned as a deserter; but this judgment was overruled by the Conseil de Révision de Paris, and he was sent back to be allowed to purge his contumacy, and to be tried for the thefts charged against him.†

* Dalloz, Jurisp. Gén., 1840, i. 438.

† Ibid., 1862, v. 159.

Other cases, however, show that the principle must be taken with some modifications.

commerce.

In the case of Wolf Cromback in 1845, the prisoner was delivered up by Switzerland for faux en écriture de The order of extradition was general, but this was the only description of forgery specified in the treaty under which he was claimed. On his trial the writings proved not to be of a commercial character, and he was convicted of faux en écriture privée. He thereupon prayed the court that he might be sent back to Switzerland, quoting Dermenon's case; but this point was overruled, and he was sentenced to five years of réclusion, and to l'exposition. He appealed to the Cour de Cassation, which, after deliberation in Chambre de Conseil, decided, that as the treaty provided for the delivery up, not only of those declared guilty, but of those pursued as such, in virtue of warrants certified by the proper legal authority, the legality of the extradition and of its consequences must be tested, not by reference to the gravity and legal character of the crime as described in the sentence of condemnation, but with regard to the original charge against him upon which he was pursued. The appeal was therefore rejected.*

In the same year the Abbé Grandvaux, charged with faux en écriture privée et d'enlèvement de mineure, was given up by Tuscany, with an express stipulation that he should not be tried for the latter offence. The chambre des mises en accusation, however, finding there were no

* Dalloz, Jurisp. Gén., 1845, i. 111. See some observations upon this singular decision in Rep. Gén. de Jurisp., vii. 143.

sufficient grounds for the heavier charge, remanded him, and instructed the Cour d'Assises to try him for the smaller offence. On appeal against this arrêt, the Cour de Cassation held that the criminal courts must proceed without regard to the conditions of extradition. That was a matter for the consideration of the Government, which might prevent the execution of the sentence, and re-deliver the criminal.*

In the case of Pascal, surrendered by Spain in 1858, the Cour de Cassation held that if the appellant, whose extradition had been granted upon a charge of rape, and of an indecent assault, with violence, had only been convicted of an indecent assault, without violence, upon a child of less than eleven years, it was clear that it was the same act differently described, and therefore there was no ground for a reference to the limitations in the order of extradition, and in the case of Rich, surrendered by the United States in 1877 on a charge of rape, the Cour de Cassation held a conviction for the attempt only, to commit that crime, good, as it was founded on the facts. which were the ground of the surrender.

Upon

It has been decided that the conditions in a grant of extradition are stipulations in favour of the accused, which he may waive if he thinks it advisable. such waiver he may be tried not merely for a crime not within the extradition treaty under which he was surrendered, but for a crime entirely unconnected with the matter which has been the ground of his extradi* Dalloz, Jurisp. Gén., 1845, i. 405. † Ibid., 1863, v. 176. Ibid., 1877, i. 463.

tion.* But if, being accused of fraudulent bankruptcy and simple bankruptcy, and given up for the former, he allows himself to be tried for fraudulent bankruptcy only, without renouncing the benefit of the terms of the order of extradition, he cannot afterwards complain that the question of simple bankruptcy was not left to the jury.†

The other French decisions refer chiefly to the incompetence of the tribunals to consider the legality of the surrender which has been made. The doctrine was fully laid down in the case of Burgerey in 1841. He was given up by the Republic of Berne on a charge which did not come within the treaty. He appealed against his conviction, but the Cour de Cassation held that the two countries might have extended or modified the Convention by subsequent agreements, according to the requirements and obligations of the friendly relations which subsisted between them that the French tribunals were not called upon to inquire into the reasons which had determined the Republic of Berne, the sole guardian of its own independence and dignity, to grant the extradition; and that whether it had been demanded or spontaneously accorded, the prisoner had been legally remitted to the jurisdiction of the law by which his crime was punishable.‡

*Legraverend, Législ. Crim., i. 112; Blondel, Monog. Alphabétique, 33; and see the Lamirande case, post, p. cclii.

Le Sieur Pascal, Dalloz, Jurisp. Gén., 1847, i. 202. Dalloz, Jurisp. Gén., 1841, i. 440. And see the cases of L'Abbé Laugé, Dalloz, J. G., 1845, i. 223; Bastianesi, ibid., 405;