FOREIGN JURISDICTION AND THE EXTRADITION OF CRIMINALS.

THE law on some branches of this subject is unsatisfactory and unsettled. Sir George Cornwall Lewis has undertaken, the use- ful task of developing its chaotic state and furthering its practical amendment. His pamphlet on the subject* is a full and able exposition ; a little- too diffuse in the statement of the laws and decisions (sometimes obsolete) on the minor branches of the sub- ject, but on the whole clear, fair and exhaustive. It begins with a summary of the five classes Of extra-territorial jurisdiction for criminal offences. Of the law as established in respect—(1) of offences committed in ships on the high seas, triable solely by the country to which such ships belong ; and (2). of the mixed jurisdiction, under treaty, for offences on the high seas (such as trading in iilaves), little is said, and little need be said. The law respecting each of these classes is alike clear and just. Equally so as respects (3) the Blass of piratical offences. Suchships have no national character, and being " hostel humani genesis,'are law- fully assailable by the ships of all nations alike, for they are on the high seas, which is the highway of all nations, and of none more than another. Pirates are therefore tried and dealt with by the law of the nation of the capturing ship, and in its own Courts. The fourth head of offences comprises those triable by perma- nent local tribunals, under treaty in Mahometan or barbarous countries for offences committed in those countries : such as occur in the consular jurisdictions over British subjects in. China' Siam, the Ottoman Empire, &c., and at Constantinople. In lesser British communities the commercial factories exercise similar jurisdiction. Of each of these Sir G. C. Lewis speaks as " a feeble and defective instrument," and he adds that the tendency of these jurisdictions in the Turkish empire is stated in. general to be the impunity of the European criminal." There is no doubt that to a great extent this is so ; though the upshot of the con- versations published on this point in Mr. Senior's interesting journal is that improvement in the effectiveness of the system is feasible ; and the general impression his remarks left on our minds was a less unfavourable one to the system than Sir G. C. Lewis has conceived of it. In settlements where no civilized tribunals exist, of ones and cases which must be speedily tried really ad- mit of no other mode of adjudication, and it is greatly within the power of the Home Government and its own agents to render them effective. None of these first four classes of jurisdiction need further comment.

It is the fifth class of extra-territorial jurisdiction which the author justly says " is open to the most serious doubts." It is that of the trial by a nation at home of offences committed by its own subjects abroad, under ordinary circumstances. Nearly all countries adopt this practice. Sir G. C. Lewis specifies the special conditions under which each civilized European State exercises this power, but they differ only slightly. England confines itself

• " On Foreign Jurisdiction and the Extradition of Criminals." By the Hight Honourable Sir George Cornewall Lewis, Bart., M.P. Published by John W. Parker and Son. to treasons of the graver crimes. We agree with Sir G. C. Lewis in the conclusion he arrives at after a.lengthened statement of the facts—" that as a general principle, resting on grounds of the most enlarged. expediency, a criminal law ought to be local ; that the Sovereign ought to enforce it with respect to all crimes com- mitted within his territory and in national ships upon the high seas." His chief grounds are that the country where the crime is committed is better enabled taget evidence,. and more interested in. checking and punishing crime in its own territories. This is quite true. At the same time Sir. G. C.- Lewis greatly diminishes the importance of furthering any alteration in the law as affects ourselves ; for in speaking of the 9th George IV., e. 31, which makes murders. and manslaughters committed abroad by Eng- lishmen, and being accessory thereto;. triable here,—he says, and quite truly, that this Act is nearly inoperative, and that that is its best defence.' Only three cases have been tried under it, as recorded. in. the Law Reports, though probably several of minor note have occurred. The first was that of Rex v. Helsham, an Irish gentleman who shot Lieutenant Crowther dead at Boulogne in. a duel in 1830. There was no valid doubt (as Sir G. C. Lewis has been misled to believe by Carrington and Payne's Reports) that Helsham was a British subject; and there would have been no miscarriage of justice on that ground : but the French waiter so grossly exaggerated the time daring which Helsham was taking his aim after the signal given, that the Jury disbelieved his entire evidence, which was material to the issue, and they therefore found a verdict of not guilty—as they might equally have done in a French Court. No great abuse seems to result from this statute.; and as the Legislature has followed the same principle, and ex.- tendedthe same power by the "Merchant Seaman's Act," it is scarcely prudent to remove it from the Statute-book.

We do not concur with Sir G. C. Lewis's dislike to " tying. the entire criminal law of a country round the neck of a subject,' and making him everywhere liable to its operation. This may he "to convert the criminal law into a personal statute, and to put it on the same footing as the law respecting civil status ;" but if so, cui male? Is not our criminal law good law, and may it not be of salutary effect that some men. should feel that they do not es- cape from its penalties on leaving our shores? Such has been the established jurisdiction of our Courts over our sabjects abroad, by

Act of Parliament ever since the 33d Henry " Et nolumus Anglia leges mutari." The existence of the power by no means necessitates its constant exercise. It is commonly left to Foreign Courts to try the offences of British subjects, and. the "general principle " of kcal criminal jurisdictions is fully enough oh- served.

The main branch of the subject which Sir G. C. Lewis has broached remains to be noticed : it is the extradition of fugitive criminals. As a. matter of right this cannot be demanded. As a matter of practice very various usages prevail. First, as regards offenders charged with ordinary crimes. France, Belgium and. Switzerland, deliver them up for serious offences only, if non- political. A special treaty between France and ourselves, con- cluded in 1843, has become almost a dead letter. Another was

ned between Great Britain and the United States in 1842,

hat are the results ? France from 1853 to 1859 (both exclu- sive) applied for seven offenders only, obtaining none ce' them. America applied, for eleven, and obtained six. Since 1836 no ap- plications seem to have been made by France. Similar results have been experienced. in other countries, the hitch. being the difficulty of giving such evidence of the crime charged as shall justify the foreign country. that the fugitive alien is probably guilty. But before examining the mode in whieh this difficulty may be surmounted, we will give Sir G. C. Lewis's very valid reasons for facilitating and extending the practice of extradition.

" In considering the principles which ought to govern the extradition of criminals, we may, in the first place, revert to the maxim: already laid down, that the administration of criminal law is essentially local. It is the pecu- liar interest of the district to maintain order by protecting person and pro- perty. It is on the spot where a crime is committed that the proofs of-a criminal's guilt can be most effectually, most easily, and mostinexpensively obtained. It is at the piece where a crime is alleged to have been com- mitted, that the accused person can best establish his innocence, if'he be falsely charged, or prove any extenuating circumstances which may exist in his favour. It is equally conducive to the repression of crime and to the protection of innocence, that criminal trials should be held near the place where the offence is alleged to have taken place.

"If, therefore, a comity of nations for the enforcement of criminal law is desirable ; if there ought to be a combined action of independent States for the-repression of crimes ; it follows that the proper mode of attaining this end is, not by an attempt to exercise a criminal Jurisdiction upon the terri- tories of foreign States, but by extradition. If an accused man is tried at home for an offence committed abroad, he is withdrawn from the neighbour- hood of the place where the crime is declared to have been committed, and is transferred to a distant tribunal; whereas extradition remits the accused man to his natural forum, the forum of the district which was the scene of the alleged offence. It is generally acknowledged, both by text- writers on the law of nations, and by practical statesmen, that there is a presumption in favour of extradition, provided that it be restricted within certain limits and guarded by certain conditions."

As regards the extradition of ordinary criminals, but slight difficulty besets an international arrangement. Some disparities must, however, be effaced as to the classes of persons to be sur- rendered. Between Great Britain, France, and the United States there is in the Treaties no reservation of native subjects ; whilst the German States except their own subjects from extradition ac- cording. to the principle laid down by Bernard that "every man has an innate right to remain on the soil where he was born; that a man's right to his own home is of Divine origin."' One re- sult of this shockingly human twaddle was, that a wretch living in a French village murdered his sister and brother-in-law in a neighbouring Prussian village, and walked for years afterwards insolently about the streets of the French village, in. perfect im- punity; as the French Government does not surrender natives to the German States.

Sir G. C. Lewis advocates the extension of extradition to all such cases ; and in order to obviate a prevailing obstacle, suggests that " the amount of proof and the formalities required should be as small as is consistent with the prevention of abuse." He pro- poses that a foreign State should--

"Through the accredited diplomatic channels, give a reasonable• proof that there has been a proper investigation by the officers of police and the functionaries conducting the preliminary stages of judicature, and that this investigation had led to the conclusion that the person in question is guilty of the offence charged against him," and he adds " it is desirable that the extradition should take place upon proof of identity of the party, and without any full investigation such as a magistrate would make for the commitment of ft prisoner in this country." He rightly considers that the possibility of injustice arising from national disparities of criminal- jurisprudence, by no means out- weighs the public benefit of general extradition.; and he adds that— "The recognition of the criminal law of a foreign State, and the confi- dence in its regular and just administration, which is implied in a system of extradition thus carried into effect, is paralleled by the established practice

of this and other countries with respect to the civil law." • * •

" Between the recognition of that part of the criminal law of a foreign State which does not relate to political offences, and the recognition of its civil law, there does not seem to be any material difference. There is no apparent reason why its law of homicide or forgery should not be as con- sistent with sound principles of jurisprudence as with the laws of marriage and those of Bills of Exchange."

All these matters seem to us capable of comparatively easy ad- justment. The great States of the world have cast aside most of the hoodwinks and prejudices which blinded their vision. in the perception of such interests as affected their mutual common weal in matters non-political. Discussion. and diplomaey may do the rest. The great difficulty arises where extradition is sought to be applied to political offenders, especially between countries of discordant institutions and conflicting views of political liberty.

The laws of hospitality, and the extreme risk that such an ex- tension of the right of extradition, would minister to the persecu- tion of foreign despotism, entirely forbid the attempt to infringe the well-recognized immunity of political refugees. But then comes the necessity of taking proper precautions lest refugees should abuse the rights of refuge by acts hostile to the tranquil- lity of their own country. In this respect our law is deficient both for preventing and punishing such offences. We agree with Sir G. C. Lewis, that the mode of dealing with such cases should not be by enactments treating attempts on the lives of foreign Sovereigns as ordinary attempts to commit murder. Such of- fenders are no ordinary criminals. They may be no better than mere assassins, or they may be actuated simply by motives which they deem patriotic,—guilty, like Harmodius and Brutus, of re- bellion and treason, rather than of simple murder. The only safe principle to act upon is that laid down by Lord Lyndhurst, viz., to treat the offence as one tending- to embroil the Government of her Majesty with that of a foreign. country ; but even to make such an abuse of asylum- a statutory felony would require very delicate and cautions handling, otherwise great injustice might be done, and the law be made the instrument of tyranny.