EXTRADITION FOR POLITICAL OFFENCES.
AVERY interesting problem in international law was discussed on Tuesday last by the Court of Queen's Bench, Mr. Justice Denman, Mr. Justice Hawkins, and Mr. Justice Stephen being the Judges on the Bench. The question adjudicated on by this specially strong and well-qualified Court was one which, though it is constantly being canvassed by Englishmen, has, oddly enough, not come before the tribunals in recent years. Though the Extradition Act has been in operation nearly twenty years, no case involving the surrender of a political prisoner has ever been decided under it ; and therefore the Court had practically to break virgin soil in marking out the limits of asylum allowed by this country. The Act declares that no man accused of a political offence, or accused of some other offence with the object of getting hold of him, and then trying him for a political offence, shall be extradited. It is necessary, then, to seek a definition of political offences before determining in any particular case whether the circumstances are such as to make the crime extraditable or not. This was the problem which occupied the Court this week, with the practical result that Castioni, the man accused of the murder of Signor Rossi during the late revolution in Ticino, was set at liberty, and declared not to have been guilty of an extraditable offence.
The principle which the three Judges concurred in re- garding as determining what is and what is not a political offence, was, shortly, this. Acts which are incidental to or part of a political insurrection must be held to be political in their nature. This does not, of course, mean that ever' crime committed during a period of rebellion is a political crime, and not extraditable,—or, in other words, that any disturbance with a political object inaugu- rates what an American would speak of as " a free shoot." Merely because a certain body of men are bent upon over- -turning a Government or changing the configuration of the " polity," they are not to be protected when they do ordinary unlawful acts. For example, if a man going up a street with a party of others to. storm a Government building, wantonly shoots an innocent householder on his doorstep, he cannot claim the right of asylum. If, however, in attempting to force his way into the building, he kills those who resist him, he is doing something incidental to or part of a political disturbance, and so is not extraditable. No doubt it is easier to state this principle than to apply it. Cases might arise in which it would be extremely difficult to determine what was incidental to or part of a political dis- turbance. These, however, will have to be argued out on their merits when they occur. Again, in order to decide whether an offence is political or not, it must often be necessary to examine what may be termed the moral atmosphere in which the crime was committed, as well as the particular motives of the individual offender. Only by looking at these together is it possible in many instances to declare with certainty what is the exact nature of an offence. It is to be regretted that the Court was not required in the present case to go into the question as to what exactly constitutes a political disturbance, for under certain circumstances that would have to be decided. In Castioni's case the con- sideration of this matter did not arise, for the attempt to overthrow the lawful Government of the Canton of Ticino—a State declared by the Federal Constitution to be " sovereign " in regard to all matters which come within its own jurisdiction—was admittedly a political movement. Suppose, however, that the affair had been municipal in its origin, would it have been possible to accord the right of asylum to a man in Castioni's position ? Say that the City of Geneva forbade its citizens to hold meetings in some particular place in the town, but that certain persons, considering they could lawfully do so, continued to resort to that place and produced a riot in which a particular rioter killed a policeman. If that rioter fled to England, would his offence be political, or not ? The killing would not have taken place as incidental to any attempt to overthrow or change the Government of the State, but would have been the result of a disturbance purely municipal in its character. How, then, could extradition be refused ? Yet if the rioters were, in fact, Socialists, it would seem somewhat unfair to refuse them the right-of asylum. It is evident, then, that the principle upon which the right of asylum is to be granted in England has not yet been laid down completely by the Courts, though some- thing has been done to put it into shape. All that has been actually held is, that when the political character of a disturbance is admitted, any act which is part of or incidental to that disturbance is not extraditable. Prac- tically, the onus of proving that the act had nothing to do with the political movement, but was one of a private character, is cast upon the nation demanding extradition, —a very heavy burden when an actual riot has taken place. The difficult task of determining what disturbances are political, and what merely municipal or private, remains then exactly as it was before. If we may be allowed to hazard a conjecture, we should say that a movement was not political unless it was intended to challenge the right of certain persons in de facto possession of " the sovereignty " in a State, to exercise that sovereignty in some particular or other. The whole question is, however, rendered very difficult and obscure, owing to the fact that the distinction between political and other offences is utterly unknown to the English law, and there is, therefore, no canon for determining it. Still, the extradition statute uses the phrase " political," and therefore the Judges must attach a meaning to the word in each particular instance, by taking such a view of the matter as seems reasonable to them. After this has been done in a number of cases, a principle of discrimination will no doubt be evolved. Till then, each case must be taken as it stands.
It was a fortunate circumstance that the important point settled in the present instance should have been discussed in a country which is as jealous as England in regard to the right of asylum, was involved. The Castioni case has been argued without any sort of international bitter- ness. If, however, Austria, Germany, or Russia had been the Power demanding extradition, it would have been very difficult to have maintained the same cool and judicial atmosphere. We cannot help thinking that the little Committee of quiet unknown middle-class men who rule Switzerland, and yet make her respected as a State, must have been singularly glad when the news was telegraphed to them that their application had been refused. A heated trial for murder is the last thing which they want to see begun in Ticino just now. The Canton is still effervescing, and the struggle on the one hand to get Castioni convicted, and on the other to get him off, would have entirely destroyed the work of pacification now in progress. A self-respecting Power was, of course, obliged to ask for Castioni's extradition ; but that refused, the matter can be allowed to rest. There is one other point which may be noticed in regard to the trial. We trust that the Foreign Offices of the Powers have watched the proceedings in the Queen's Bench. They are always apt to think that our Government could, if it were only friendly, get prisoners extradited by the expedient of letting the Judges know what the Executive desired of them. The absolutely independent working of our judicial machine, as exemplified on Tuesday last, ought, however, to convince them that matters of high policy cannot possibly affect a decision in our Courts. Justices Denman, Hawkins, and Stephen, if it were the law, would give up Charlotte Corday, or protect Carrier, without a thought as to the merits of the respective fugitives, or the external consequences of their decision.
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