Gambar halaman

bas been made in the comparatively peaceful years that have elapsed since 1815.

The motive for extradition, as set down by international jurists, is two-fold : first, it is for the common interest of mankind that offenses against person and property, offenses against the well-being of society, and, if I may so use the term, against the common law of nations, should be repressed by punishment; and, secondly, it is for the interest of the State into which the refugee has fled that he should be immediately apprehended, since no State wishes to add to the number of its own unimprisoned criminals by offering itself as a refuge for the malefactors of foreign countries. For the first of these reasons, viz: that it is for the common benefit of all, it seems as if we might reasonably expect that all civilized nations would concede reciprocity in regard to the matter; and for the second, viz: that we do not wish any addition to our criminal classes, even if other States refuse to grant reciprocity, it is for our own self-interest to deliver up to justice the escaped crim. inals of other nations. It would seem to me, then, that treaties such as have hitherto been concluded by United States, in which are specified certain crimes, for other than which extradition will not be granted, are quite unnecessary; and should be concluded for the purpose only of making sure of the fulfillment of conditions under which the extradition is conceded. It should be our general policy to surrender to any civilized State, whether we have a treaty on the subject with it or not, any refugee from that State against whom has been made out a prima facie case that he has been guilty of committing some offense by us regarded as against the well-being of society.

The principle, often put forth and in fact contained in our treaties with Norway, Sweden, Austria, and most of the German States, that, if the fugitive be a subject of the State in which he is found, his extradition will not be granted for a crime committed in the foreign State, is carrying to an extreme the principle of national sovereignty; and, as is readily seen, is contrary to the principle of both the motives for extradition already set forth; and, too, is contrary to the whole system of the criminal law of this country, which has at its foundation the principle that a criminal should be tried in the place where VOL. VII.


the crime was committed, in the forum delicti. The trial of the criminal in the country in which the crime was committed is manifestly more just, not only because the evidence is more trustworthy and more easily obtained, but also because it is the laws of that particular country that he has violated, and by these same laws should he be tried, and suffer such penalties as these laws impose. To put forward as the reason for not surrendering a criminal, the fear that justice would not be done by a foreign tribunal to one of our citizens, would be to offer a serious insult to the nation making the demand; for extradition is based on mutual confidence, and there is no more reason to distrust the fair administration of justice in such a case than in any other.

This doctrine has especial force in such a country as United States, in which the principle of trial in loco quo is so strong, and which, unlike Bavaria and other German States, takes no cognizance of a crime committed by one of its citizens outside of its own boundaries.

In all the treaties of United States with foreign powers the offenses for which extradition will be granted have been speci. fied to the exclusion of other offenses not so specified. The Ashburton treaty between United States and England negotiated in 1842 covers only seven specitied crimes and expressly excludes all crimes of a political nature. If we review the general progress of our extradition policy, as exhibited in our treaties subsequenıly concluded with foreign powers, we should see that the tendency has been steadily in the direction of enlarging the meagre list of extraditable crimes, accompanied by the exclusion of crimes of a political nature.

Notwithstanding the high authority of Grotius, modern jurists are unanimous in thinking that extradition should not be granted for political offenses; for, although it is undoubtedly for the interest of every nation that its subjects should submit to the constituted government for the maintenance of interval peace and order, yet one country can scarcely be ex. pected to bave such an interest in the particular form of government or particular ruler of another, that it should aid in bringing to trial political offenders, who, it may be, are rather voluntary exiles than escaped criminals. Though the rebel who causes bloodshed from interested motives may be worthy

of the severest punishment, yet resistance to usurpation or tyranny may be inspired by the noblest motives, and in such political crises, failure renders him a criminal, success a hero. There is a wide divergence of opinion as to what constitutes treason, in different countries; in some dissent from the established church ; in some freedom of the press; so it would be very difficult for a foreign nation to judge between the contending parties, and it may itself be divided in its views as to the merits of the particular case. It is then a safer rule to exclude crimes of a purely political nature; but this principle. must not be carried to an extreme. Far different from such crimes are those of assassination and murder by weapons or explosives even when comunitted for the furtherance of some political or pretended political purpose. The making of such a distinction was the object of the recent extradition convention between United States and Belgium, which recognizes as a specific crime “the assassination or attempted assissination of the chief of State;" and it was agreed by European jurists that no European State would have refused to surrender to United States any of the parties concerned in the murder of President Lincoln, or to extradite Guiteau, had be escaped from this country. In regard to the proposed extradition of the Irish agitators, Sheridan from United States and Byrne from France, the Pall Mall Gazette says: “What is and what is not a political offense are questions the answer to which vary with the temper of the times, the prejudices of the judges and the political tendencies of the governments of the day. It has been our custom in England to give a very liberal interpretation to the term and we need not be surprised if the authorities in United States, if not in France" do the same; implying that, even if Sheridan and Byrne could bave been proved to have actively engaged in organizing the Assassination Society in Dublin, England, from her past policy in regard to the extradition of Orsini, the would be assassin of Napoleon III., could have had no cause for complaint, if extradition were refused on the ground of political motive. It is an essential characteristic of a political crime that it takes place openly and without attempt at concealment; but such a dastardly, skulking crime as assassination loses none of its atrocity from its connection with a political or quasi-political motive. In general the United States should never refuse on the ground of the political purpose the demand for the extradition of a refugee accused of what, in the absence of such motive, would be an ordinary crime, unless it was committed in open insurrection. I say this should be our general policy, but, since peculiar cases might arise, discretionary power should be lodged either with the courts or the President, to refuse to deliver up a person so accused, if in their judgment any injustice would be done by complying with the demand.

Crimes, too, of a purely local nature should be excluded from extradition ; for many nations pass laws in regard to military service, religion, etc., which provide for very severe pun,

. ishment of offenses not recognized in other countries to be of a serious nature, or perhaps offenses at all. An instance of this is our revenue laws, the violations of which in this country are punished with great severity, while they are treated as very trifling in England.

Hitherto, as I have said, the crimes which shall be regarded as subject to extradition between United States and foreign nations have been limited to a list of certain specified crimes of a most serious nature. But I can see no reasonable objection to extending the list to all crimes against person or property, irrespective of degree or quality of the crime, whether it be a felony or merely a misdemeanor, retaining as the only limitations those already laid down, that it be of neither a political vor local character. With regard to other than political and local crimes, it may be safely taken for granted, that the foreign government will not demand the surrender of an offender for a merely trivial offense, especially as the expense of the extradition is borne by the government making the demand; and on the other hand no man is willing to become an exile from his native land except to escape the punishment due a crime of very grave nature. The United States have been greatly hindered in their administration of justice by the few. ness of the number of extraditable crimes, specified in the Ashburton treaty; a forcible instance of this is the case of Miller in 1881 who, after having been convicted of burglary in Pennsylvania, escaped to Toronto, Canada, where the author

ities refused to surrender him, as burglary is not one of the crimes specified in the treaty (though he was afterward surrendered on another charge); yet burglary is a crime the suppression of which is for the interest of all mankind, and it is obviously for the interest of Canada not to add to the number of her own burglars. What, then, prevents United States from extending her meagre list of extradition crimes to all offenses against person and property, political and local crimes alone excepted ? Other civilized nations would soon follow our lead; or if they did not, it would be their own misfortune to become the refuge of our criminal classes.

In most of our treaties with foreign powers, it is expressly stipulated that a criminal extradited for one offense shall not be tried for any other; the reason for this stipulation is to prevent a man's being tried for a political or local crime after having been extradited for an ordinary offense admitted by the treaty. The British Royal Commission of 1878 reported against such a stipulation on the ground that, if political and local crimes be excepted, all injustice is removed. It does not seem to me however that their view is altogether sound. For we must not forget that, although in theory the delicate distinction between political and ordinary crimes is of great value, yet it is one that is extremely difficult to put into practice; and that, although attempts to make this distinction with such absolute clear ness as is necessary have frequently been made, they have invariably resulted in failure. Demands on the country for extradition of a criminal on ostensibly political or religious grounds have long ceased to be made; but the same result would be brought about if, after his surrender for some ordinary offense, he could be tried for another, the political character of which was at all doubtful; so that, so long as the foreign country satisfied itself that the crime was not of a political or local nature, it would make little difference what de cision United States made on the subject. Therefore I think

I the stipulation ought to be retained in all our treaties, not because I consider it unexceptionable in theory, but because, in practical affairs, more perfect justice can be administered in that way, than in any that I have heard suggested.

« SebelumnyaLanjutkan »