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Entered, according to act of Congress, in the year eighteen hundred and seventy-one,
By WEED, PARSONS AND COMPANY,
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
ALBANY, JULY 29, 1871.
EXTRADITION OF FRENCH COMMUNISTS. The declaration of President Thiers, that he intends to demand from foreign powers the delivery of those persons who committed the crimes of murder and arson within the French capital during the supremacy of the commune, has, for obvious reasons, received but little attention in this country. But, if there be any truth in a telegram recently received from Paris, this question of surrendering the fugitive insurgents is likely to prove of some moment to us. In that telegram, it is stated that Minister Washburne has notified the French government that no person convicted of criminal acts in Paris, against the national government, will be permitted to reside in the United States. There is, probably, no truth in this report, as it does not appear that our government has taken any action in the matter, and Mr. Washburne would not volunteer a statement of that character without instructions; but it is by no means improbable that our government will be called upon to address itself to the subject. A brief survey of the law will not, therefore, be out of place.
Puffendorf, Martens, Heffter, Phillimore, and, indeed, all the more recent writers on international law. The difference between the two doctrines is, that the one considers extradition a matter of strict duty, while the other regards it a matter of national comity. The distinction is important, for, if it be a matter of strict duty, a refusal to comply, on due demand, would afford good ground for a declaration of war.
But however important or interesting the question, it is one not likely to arise in the case of the communists, as we have a treaty with the French (convention of 1843) which provides for extradition in cases of murder, arson, etc. If it be casus belli to refuse extradition in case it be a strict duty, which is generally admitted, no one will deny that it is equally so when it rests upon treaty obligations. It follows, therefore, that if this treaty applies to the case of the communists, a refusal on our part to surrender on due demand would justify the French nation in declaring
It is generally admitted that extradition should not be granted in the case of political offenders (Phillimore's International Law, p. 443), and it is expressly provided in our convention with the French that it shall not apply "to any crime or offense of a purely political character." There is not, nor in the nature of things can there be, any exact and arbitrary definition of a 'crime or offense of a purely political character," any more than of "fraud” or "undue influence." Every case of this kind must be judged of in the light of its attending circumstances.
One thing, however, is clear, and that is, that the rebellion of the communists against the government of M. Thiers was at most but a political offense. Rebellion is not a crime within the meaning of the extradition act, and if it were, M. Thiers is not in a position to consistently demand the surrender of the rebels. His own elevation to power was the result of a rebellion—the overthrow of a government which had existed for twenty years and been approved by the suffrages of seven and a half millions of FrenchAnd by whom was this government overthrown? Certainly not by the imperialists or moderate republicans, but by the very men who afterward
There has been a remarkable diversity of opinion among authorities on international law, as to whether a state is bound by the law of nations and independent of treaty, to surrender fugitives from justice. Chancellor Kent in his commentaries (vol. 1, p. 37) approves of the doctrine that "every state is bound to deny an asylum to criminals, and, upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime was committed." "The language of the authorities," he continues, "is clear and explicit, and the law and the usage of nations, as declared by them, rest on the plainest principles of justice." In support of this doctrine he cites the authority of Grotius, Heineccius, Burlamaqui, Rutherford and Vattel; but there are public jurists of equal authority who maintain the opposite doctrine, among whom may be named Voet,