with greater precision and comprehensiveness than in the earlier agreements.6

3. POLITICAL OFFENSES

(a) Development of the rule

Long before the establishment of international law or of any system of extradition, fugitives were frequently surrendered to the monarchs from whose control they had fled. Surrender was usually induced by the power of the sovereign making the demand. The treatment that might await the fugitive was no deterrent. Hence the return of political offenders bore no resemblance to the modern practice of extradition and was based on a different theory. Consistently with the growth of the idea that no fugitive should be surrendered unless his acts were regarded as criminal at the place of asylum as well as in the country from which he had fled, and with a reluctance to surrender a fugitive who might be exposed to summary and arbitrary treatment if restored to the clutches of the demanding government, the principle of granting asylum to political offenders became general. In the more enlightened states enjoying liberal laws and constitutional government, the acts of an individual participating in and incidental to a revolutionary movement abroad, could not always be regarded as morally wrongful in the country of asylum, notwithstanding its own laws respecting treason. It seemed inequitable that the fate of a revolutionist who had sought refuge in a foreign land, should hang upon the success or failure of the uprising in which he had been a participant.8

Thus the very circumstances that rendered the modern practice of extradition practicable and habitual served likewise to check and discourage the surrender of the political fugitive. The municipal laws of certain states, such as Belgium, Switzerland and England, emphasized

In the index to Malloy's Treaties, II, 2448-2449, will be found a list of extraditable crimes contained in treaties of the United States, and references to the conventions in which they are respectively to be found.

7 See Albéric Rolin, Les infractions politiques, Rev. D. I., 1 ser., XV, 417; Moore, Extradition, Chap. VIII, also id. §§ 5 and 6; Oppenheim, 2 ed., I, 389–392; W. B. Lawrence, Albany L. J., XIV. 85; Biron and Chalmers, 7-12; Bibliography in Clunet, Tables Générales, I, 790-792, 978.

See Oppenheim, 2d ed., I, § 338

490

the principle involved and weakened the efforts of Russia to disregard it.9

(b) Reservation in treaties of the United States

In almost all of the extradition treaties to which the United States has been a party there is a provision expressly declaring that persons charged with the commission of political offenses shall not be surrendered. With respect to those very few conventions containing no such provision, it is not believed that the contracting parties contemplated the extradition of political offenders.10

Without attempting to define the term "political offense," or to enumerate all of the occasions when an act may be said to possess such a character, the effort is made to observe the circumstances when a fugitive within the United States, whose surrender has been sought by a foreign government, has been regarded by the executive or judicial department of the former as a political offender within the meaning of a treaty provision, and therefore discharged from custody. In every case the following elements have been present: 11

9 See Oppenheim, 2d ed., I, §§ 333–340.

Although Art. IV of the extradition treaty between Russia and Spain of March 9, 1877 contained a reservation respecting political offenses, that of April 24, 1888 between the same countries made no similar provision, and added to the list of extraditable offenses in Art. II, that of lése majesté with respect to the sovereign or members of his family. See Tratados de España, VII, 221; id., IX, 329.

10 Declared Mr. Fish, Secretary of State, in a communication to Mr. Hoffman, May 22, 1876:

"Neither the extradition clause in the treaty of 1794 nor in that of 1842 contains any reference to immunity for political offenses, or to the protection of asylum for political or religious refugees. The public sentiment of both countries made it unnecsary. Between the United States and Great Britain, it was not supposed, on either side, that guarantees were required of each other against a thing inherently impossible, any more than, by the laws of Solon, was a punishment deemed necessary against the crime of parricide, which was beyond the possibility of contemplation." (For. Rel. 1876, 233, 237, Moore, Dig., IV, 334.)

See also message of President Tyler, August 11, 1842, submitting treaty with Great Britain of that year to the Senate, Senate Ex. Docs., 27 Cong. 3 Sess., Vol. I, Doc. 2, p. 22 quoted in Moore, Extradition, I, § 152; see also id., I, § 206.

11 The American cases considered are the following: The Mexican revolutionists of 1880 (For. Rel. 1880, 787-788, Moore, Extradition, I, § 216); case of Francisco J. Cazo, Mexico (Moore, Extradition, I, § 217, and MSS. there cited not contained in published documents of the United States); the Salvadorean refugees (In re Ezeta, 62 Fed. Rep. 972; J. B. Moore, in American Law Review, XXIX, 1; For. Rel. 1894,

(1) There has been an uprising of revolutionary origin and purpose against the demanding government. In some cases the uprising has been of vast dimensions, such as that which swept over the Baltic provinces of Russia in 1906; 12 in others it has been of insignificant proportions, as in the case of Cazo,13 and in that of the San Ignacio raid.14 In one case, that of Lynchehoun, the act of the accused was incidental to a popular movement to "overthrow landlordism" in Ireland, as a means of securing reform in legislation, a change in the governing classes, and possibly independence from English parliamentary rule.15 It has been regarded as sufficient if there were in fact a party seeking governmental control, however lacking military or civil organization.16 563-576); the San Ignacio raid, Mexico (Ornelas v. Ruiz, 161 U. S. 502; For. Rel. 1897, 405–416, Moore, Dig., IV, 336-349); case of James Lynchehoun, Great Britain (Proceedings in the case of James Lynchehoun containing text of decision by Commissioner Charles W. Moores, Indianapolis, 1903); case of Christian Rudovitz, Russia, 1909 (Mr. Root, Secy. of State, to Baron Rosen, Russian Ambassador, Jan. 26, 1909, Dept. of State, file 16649/9, Serial No. 121; printed Statement and Argument, and Abstract of testimony submitted to the Secretary of State in behalf of the accused, January, 1909; E. Maxey, in Green Bag, XXI, 147); case of Pouren, Russia, 1909.

See also case of McKenzie (Moore, Extradition, I, § 211) whose extradition was sought by Canada in 1837 from the authorities of the State of New York, and refused by the latter because, as the acts charged against the accused were regarded as political, they were embraced within the provisions of the New York statute excepting treason from the crimes on account of the commission of which a fugitive might be surrendered by the governor to a foreign state.

See also the St. Albans raid case in 1864, in which a Canadian court ordered the discharge of certain prisoners whose extradition was sought by the United States. Moore, Extradition, § 215, and documents there cited.

An English case frequently cited by American authorities is that of re Castioni, 1891, 1 Q. B. 149. See also re Meunier, 1894, 2 Q. B. 415; re Arton, 1896, 1 Q. B. 108. See also the Swiss case of Wassilieff, 1908, Entscheidungen des Schweizerischen Bundesgerichtes, XXXIV, pt. 1, 533, and comments thereon by Julian W. Mack, 1909, Proceedings Am. Soc. of Int. Law, III, 144, 153.

12 See Abstract of testimony in the Rudovitz case submitted to the Secretary of State in behalf of the accused, January, 1909.

13 See Moore, Extradition, I, § 217.

14 See statement of facts in Ornelas v. Ruiz, 161 U. S. 502, 510-511. See also J. Reuben Clark, Jr., Proceedings, Am. Soc. of Int. Law, III, 95, 120.

15 See Opinion of Commissioner Moores, Proceedings in case of James Lynchehoun, 124-130.

16 Declared J. Reuben Clark, Jr., 1909, Proceedings, Am. Soc. of Int. Law, III, 95, 120.

"It would also appear from these Russian cases that the party to which the fu

(2) The accused has been connected with the movement. In no case has there been any serious question as to the relation of the accused to the uprising. 17

(3) Either the acts charged against the accused have been deemed incidental to the movement; 18 or the evidence has failed to show that

gitive belongs need not, in order to be considered revolutionary, be warlike, that is, it need not at the moment have an armed force in the field or be engaged in military operations.

"And it would seem, further, that such a party need not have control of any of the actual governmental machinery even in the district in which the acts complained of occurred. It would appear to be sufficient if it were an actual party, its operations as well as its organization being secret. It should, however, be noted that in the Russian cases it appeared that although the Russian Government was in actual control of the governmental offices of the revolutionary provinces, the revolutionists maintained among themselves a more or less effective organization and attempted, at least, to govern the members of their own party and to punish those inimical to it." It seems clear that in the absence of an uprising, acts of violence, whether for the purpose of inciting revolution, or spreading anarchy, would not be regarded as political offenses under the treaties of the United States. See J. B. Moore in Am. L. Rev., XXIX, 16-17, citing re Meunier, 1894, 2 Q. B. 415, 419. As the anarchistic theory precludes the idea of government, an avowed anarchist would find difficulty in shielding himself from the consequences of his acts, by asserting a connection with any movement, the object of which was to gain control of a government for the purpose of exercising governmental functions.

17 Declared Denman, J., in re Castioni, (1891) 1 Q. B. 149, 159: "The question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as a part of the political movement and rising in which he was taking part." (Cited with approval by Morrow, J., in re Ezeta, 62 Fed. Rep. 972, 999; also by Secretary Sherman in the Guerra case (San Ignacio raid), and by Secretary Root in the Rudovitz case.

18 Declares Prof. Moore: "The act must be connected with the contest; it must be incidental to and form a part of the political disturbance in order to be classed as a political offense." (Am. L. Rev. XXIX, 1, 17.)

With respect to the Rudovitz case Mr. Root, Secretary of State, declared in a communication to Baron Rosen, Russian Ambassador, Jan. 26, 1909:

"In reply I have the honor to say that an attentive reading of the evidence offered at the hearing before the extradition magistrate goes to show,- that on the night of January 3, 1906, a party of some sixteen armed men, masked and disguised, came to the little village of Benen on the estate of Benen and, having gained entrance into certain houses of the village, killed a man (Christian Leshinsky), his wife (Trina Leshinsky), and their married daughter (Wilhelmina Kinze); that they also robbed the Kinze woman and her husband (Theodor Kinze) before killing her; and that some time during the occurrence they set fire to the house in which they had found and

acts committed in the course of the uprising that might possibly not be justly regarded as incidental thereto, were in fact committed by the accused.

While the connection between certain acts, however much to be deplored, such as the killing of spies or the burning of houses, with a political disturbance has oftentimes been apparent, the relation thereto of other acts such as robbery committed simultaneously therewith has been less easy to determine. 19 When the political purpose and nature of an expedition have been recognized, there has been a tendency on the part of the United States, in the absence of conclusive evidence to the contrary, to regard acts of plunder as incidental to the contest. Such an

killed the mother, Trina. It does not appear that the men implicated in the affair gave at the time any reason for the killing of Christian and Trina Leshinsky, though they are said to have declared that they killed the Kinze woman because she was a 'spy.'

The testimony of the accused given before the extradition commissioner goes to establish that the accused was a member of the Benen group of the Social Democratic Labor party, one of the several revolutionary parties in Russia; that later he joined the Zhagarn group of that party; that at a regular meeting of the Zhagarn group, the death of the Leshinskys and Mrs. Kinze and the burning of the premises, were voted as revolutionary acts and measures; and that the accused participated in the business before this meeting. Other witnesses corroborated his testimony that the aim, purpose, and work of the Social Democratic Labor party were revolutionary and that the death of the persons above named was ordered by one of the organizations of that party. Although there was some discrepancy in the evidence as to just which local organization passed the original death decree, this has appeared to be immaterial in view of the evidence to the fundamental fact that some organization of this revolutionary party did actually decree that the persons named should be put to death. The witnesses testifying to these matters were not impeached and the demanding Government introduced no evidence to controvert their testimony.

"In view of these facts and circumstances the Department after a mature and careful consideration of the evidence so adduced in this case, finds itself forced to the conclusion that the offenses of killing and burning with which the accused is charged are clearly political in their nature." (File No. 16649/9, Serial No. 121.)

19 Thus in the Rudovitz case it was urged by counsel for the demanding government in argument before the committing magistrate, that the prisoner should be held to answer to the charge of robbery, in case he could not be held on any other, on the ground that the acts of robbery were not, in the judgment of counsel, connected with or incidental to the uprising in the Baltic provinces. See printed Statement and Argument in behalf of the accused, page 10. See also Mr. Romero, Mexican Minister, to Mr. Sherman, Secy. of State, November 15, 1897, For. Rel. 1897, 406, Moore, Dig., IV, 337.