Page images
[ocr errors]
[blocks in formation]

Entered, according to act of Congress, in the year eighteen hundred and seventy-one,


In the office of the Librarian of Congress, at Washington.

[merged small][ocr errors][merged small][ocr errors][merged small]


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. 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.

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) One thing, however, is clear, and that is, that the approves of the doctrine that "every state is bound rebellion of the communists against the government to deny an asylum to criminals, and, upon application of M. Thiers was at most but a political offense. and due examination of the case, to surrender the Rebellion is not a crime within the meaning of the fugitive to the foreign state where the crime was com- extradition act, and if it were, M. Thiers is not in a mitted." "The language of the authorities,” he con- position to consistently demand the surrender of the tinues, "is clear and explicit, and the law and the rebels. His own elevation to power was the result of usage of nations, as declared by them, rest on the a rebellion the overthrow of a government which plainest principles of justice." In support of this had existed for twenty years and been approved by doctrine he cites the authority of Grotius, Heineccius, the suffrages of seven and a half millions of FrenchBurlamaqui, Rutherford and Vattel; but there are pub- men. And by whom was this government overlic jurists of equal authority who maintain the oppo- thrown? Certainly not by the imperialists or modesite doctrine, among whom may be named Voet, rate republicans, but by the very men who afterward


[ocr errors]
« PreviousContinue »