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cattle, etc., by requisition would be robbery. According to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. I think, therefore, that the expression in the Extradition Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances. I do not wish to enter into details beforehand on a subject which might at any moment come under judicial consideration." The question has come under judicial consideration, and having had the opportunity before this case arose of carefully reading and considering the views of my learned brother, having heard all that can be said upon the subject, I adopt his language as the definition that I think is the most perfect to be found or capable of being given as to what is the meaning of the phrase which is made use of in the Extradition Act.

Now, was this act done by Castioni of a political character? That there was a general rising of one party there can be no doubt. They were as it were levying war against the Government. That they anticipated violence or violent resistance there can be little doubt. The very fact that five men of the opposite party were bound and put in front of those who were making the attack shews the object. "We expect an attack to be made upon us; we expect personal violence; and these five persons are the most likely if they are put in front to deter those who would offer violence to us from doing so." I think it is immaterial whether or not one gate was broken open, or whether the gates had been burst open or not. The question really is whether or not this was an act done by this prisoner in his character of a political insurgent at that time, and I do not think it signifies whether or not he had come into Bellinzona on the day before, or in the morning of the day on which this occurrence took place. If he was a citizen of the place, taking his part in a movement of a political character, which he chose to join in because he thought it was for the benefit of the political side to which he desired to attach himself, I cannot come to the conclusion that he is to be deprived of the privilege of the refuge afforded to him simply because, even after the palace was broken into, having a revolver in his hand, he did make use of it in a way which is very much indeed to be deplored, because I find no evidence which satisfies me that his object in firing at Rossi was to take that poor man's life, or to pay off any old grudge which he had against him, or to revenge himself for anything in the least degree which Rossi or any one of the community had ever personally done to him. When it is said that he took aim at Rossi, there is not a particle of evidence that Rossi was even known to him by name.

I cannot help thinking that everybody knows there are many acts of a political character done without reason, done against all reason; but at the same time, one cannot look too hardly and weigh in golden

scales the acts of men hot in their political excitement. We know that in heat and in heated blood men often do things which are against and contrary to reason; but none the less an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.

For the reasons I have expressed, I am of opinion that this rule ought to be made absolute, and that the prisoner ought to be discharged.o1·

91 In Re Ezeta (D. C.) 62 Fed. 972, 998, 999 (1894), Judge Morrow says: "In the Castioni Case, supra, decided in 1891, the question was discussed by the most eminent counsel at the English bar, and considered by distinguished judges, without a definition being framed that would draw a fixed and certain line between a municipal or common crime and one of a political character. * Applying, by analogy, the action of the English court in that case to the four cases now before me, under consideration, the conclusion follows that the crimes charged here, associated as they are with the actual conflict of armed forces, are of a political character."

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For further illustrations of political and non-extraditable offences see Cazo's Case, 1887, in 1 Moore on Extradition, 324; The St. Alban's Raid, 1864, Id. 322; Burley's Case, 1864, Id. 319.

"Political Offences: 'Most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the government and acts against the oppressions of the government. The latter are virtues, yet have furnished more victims to the executioner than the former. * * * The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries. Treasons, then, taking the simulated with the real, are sufficiently punished by exile.' Jefferson to Carmichael and Short, 1792, 1 Am. St. Pap. For. Rel. 258.

*

"In recent years there has been much discussion as to the nature of the crime committed in the assassination of the head of a government and of other public officials; whether it is to be put upon the footing of ordinary murder, or whether it shall be classed among those political offences which are exempt from extradition proceedings. Is it possible to make a distinction, as Mr. Jefferson suggests, between acts directed against tyranny, and those of a mere common-law character? Some such distinction has probably influenced statesmen in their dealings with the question of extradition. But as offences of this class have become more common and have invaded the dominions of the most liberal governments, public opinion would seem to be undergoing a change in regard to them.

"Soon after the assassination of President Garfield, the United States government entered into two treaties of extradition-that with Belgium of 1882, and that with Luxembourg of 1883-in which it is stipulated that 'an attempt against the life of the head of a foreign government or against that of any member of his family, when such attempt comprises the act either of murder or assassination or of poisoning, shall not be considered a political offence or an act connected with such an offence.' An extradition treaty between the United States and Russia, 1893, contains a similar clause.

"By an agreement between the governments of Russia and Prussia in 1888, for the basis of an extradition convention, attempts against the life of the emperor of Russia or the members of his family are to be considered as extraditable offences. And further, 'the fact that the crime or offence, in respect whereof extradition is demanded, has been committed for a political object, shall in no case be a reason for refusing extradition.'" 2 Lowe's Life of Bismarck, 19. On this subject, see 1 Moore's Extradition, 303–326.

Freeman Snow's Cases and Opinions on International Law, p. 171, note (1893).

It is not usual for nations to surrender their own subjects even although

In re MEUNIER.

(Queen's Bench, 1894. L. R., 1894, 2 Q. B. 415.)

Application for a writ of habeas corpus to bring up and discharge a prisoner named Meunier, who had been committed by Sir John Bridge, the Chief Magistrate at Bow Street, for surrender to the French Government under the Extradition Acts, 1870 and 1873 (33 & 34 Vict. c. 52; 36 & 37 Vict. c. 60.)

The prisoner was charged with wilfully causing two explosions in France, one at the Café Véry in Paris, which caused the death of two persons, and the other at certain barracks. It was proved by the witnesses whose depositions were taken in France, as well as by a statement voluntarily made by the prisoner himself to the inspector of police who arrested him in London, that the prisoner was an anarchist. * * *

CAVE, J.92 I am of opinion that this application for a writ of habeas corpus must be refused.

* * *

The last point taken is that, so far as regards the outrage at the

they may be guilty of the crime with which they are charged. To prevent disputes of this nature it is customary to exclude such citizens from the operation of the treaty, by an express clause to that effect. See Trimble's Case, 1884, 1 Moore on Extradition, 166.

"The exemption of citizens from extradition has been maintained on various grounds. The only one which need seriously be noticed is that by the laws of most countries provision is made for the trial and punishment of their citizens for offences committed abroad, and that a state should not deliver up one of its citizens to be tried before a foreign tribunal when he can be punished at home under its own laws. By England and the United States alone are offences, even when committed by their citizens or subjects, treated as entirely local." 1 Moore's Extradition, 153.

"In negotiating extradition treaties these two states have therefore been willing to stipulate for the rendition of their own subjects or citizens. Indeed, the United States for a time refused to enter into extradition treaties on any other basis; but since 1852 this objection appears to have been waived, and a large number of our treaties of extradition, as that with Mexico, exempts eacn party from the obligation to surrender its own citizens.

"But as this exemption from the obligation to surrender citizens was doubtless inserted in these treaties in deference to the opinion of other states, it is not probable that it was intended as an absolute prohibition upon the President of the United States; indeed, the wording of the clause would seem to imply a discretion on the part of the contracting parties.

"In 1880, the Institute of International Law, after an exhaustive discussion of the subject of extradition, adopted a series of resolutions, the sixth of which was as follows:

"Between countries whose criminal legislation rests on similar foundations, and which have confidence in each other's judicial institutions, the extradition of their own citizens would be a means of securing the good administration of criminal justice, because it ought to be desirable that the authorities of the forum delicti commissi should, if possible, be called upon to try the case.' "See on this subject: 1 Moore's Extradition, 152; Dana's Wheaton, pp. 189-191, notes."

Freeman Snow's Cases and Opinions on International Law (1893) p. 160,

note.

92 The statement of facts is abridged and part of the opinion is omitted.

barracks, the offence charged is one of a political character, and therefore the accused is not liable to be surrendered under the Extradition Acts; for it is said that the outrage was an attack on Government property, and was an attempt to destroy the quarters occupied by the troops of the French Government. It appears to me that, in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other, and that, if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not. In the present case there are not two parties in the State, each seeking to impose the Government of their own choice on the other; for the party with whom the accused is identified by the evidence, and by his own voluntary statement, namely, the party of anarchy, is the enemy of all Governments. Their efforts are directed primarily against the general body of citizens. They may, secondarily and incidentally, commit offences against some particular Government; but anarchist offences are mainly directed against private citizens. I agree, as to this question also, with the view taken by Sir John Bridge; and I am of opinion that the crime charged was not a political offence within the meaning of the Extradition Act.

For these reasons I am of opinion that the contention on behalf of the prisoner fails on all grounds, and that the application for a writ of habeas corpus must be refused.

COLLINS, J. I am of the same opinion, and on the same grounds. Application refused."

98 In accordance with the doctrine laid down in the principal case, crimes committed by anarchists against heads of states and governments, which would be regarded as political offenses if committed by political parties struggling to overthrow the government, are regarded as nonpolitical offenses, and therefore persons committing such crimes are subject to extradition.

CHAPTER V

TREATIES

SECTION 1.-DEFINITION OF TREATY AND EXTENT OF TREATY-MAKING POWER

FOSTER et al. v. NEILSON.

(Supreme Court of the United States, 1829. 2 Pet. 253, 7 L. Ed. 415.) Mr. Chief Justice MARSHALL' delivered the opinion of the Court. This suit was brought by the plaintiffs in error in the court of the United States, for the eastern district of Louisiana, to recover a tract of land lying in that district, about thirty miles east of the Mississippi, and in the possession of the defendant. The plaintiffs claimed under a grant for 40,000 arpens of land, made by the Spanish governor, on the 2d of January, 1804, to Jayme Joydra, and ratified by the king of Spain on the 29th of May, 1804. The petition and order of survey are dated in September, 1803, and the return of the survey itself was made on the 27th of October in the same year. The defendant excepted to the petition of the plaintiffs, alleging that it does not show a title on which they can recover; that the territory, within which the land claimed is situated, had been ceded, before the grant, to France, and by France to the United States; and that the grant is void, being made by persons who had no authority to make it. The court sustained the exception, and dismissed the petition. The cause is brought before this Court by a writ of error.

The case presents this very intricate, and at one time very interesting question: To whom did the country between the Iberville and the Perdido rightfully belong, when the title now asserted by the plaintiffs was acquired?

This question has been repeatedly discussed with great talent and research, by the government of the United States and that of Spain. The United States have perseveringly and earnestly insisted, that by the treaty of St. Ildefonso, made on the 1st of October in the year 1800, Spain ceded the disputed territory as part of Louisiana to France; and that France, by the treaty of Paris, signed on the 30th of April, 1803, and ratified on the 21st of October in the same year (8 Stat. 200), ceded it to the United States. Spain has with equal perseverance and earnestness, maintained, that her cession to France comprehended that territory only which was at that time denominated.

1 The statement of facts and part of the opinion are omitted.

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