EXTRADITION is the handing over of a fugitive from justice by the country in which he is found to the country demand ing him. (The meaning of the word "fugitive criminal," used in the Extradition Act 1870, was considered in R. v. Godfrey [1923] I K.B. 24, where it was laid down that a person, alleged to have committed a crime in a foreign country which seeks his extra dition from this country, need not have been physically present in the foreign country at the time of the alleged offence for him to be a "fugitive criminal" within the meaning of s. 26 of the Act.) Is a country, apart from treaty, bound to deliver up to the coun try of the place of commission of the alleged crime a fugitive from justice? The ideal international convention is one like the Uni versal Postal Union, in which all nations are equally interested. Such a matter likewise is the suppression of crime but this matter had no urgency until the enormous development of transport fa cilities during the 19th century. In bygone times common crimi nals rarely had the opportunity of escaping but so called political criminals sometimes succeeded and these were often given up, treaty or no treaty. Grotius held that it is the duty of a State either to surrender, or itself to punish, fugitive criminals; but he seems to confuse fact and theory. Now a State manifestly cannot agree with other nations to do what its own laws do not allow it to do. The reluctance of Great Britain to deliver up fugitives and her readiness to grant asylum (q.v.) proceeded perhaps from a be lief, not only by herself but by foreign observers, in the superiority of her institutions; but the almost universal adoption of repre sentative government in recent times has made this championship of the oppressed perhaps unnecessary and certainly embarrassing. As an example of the old state of affairs, some Spanish convicts were wrecked in 1836 on the Bahama islands and the governor detained them awaiting the opinion of the attorney-general and the solicitor-general in England as to whether he should deliver them up to Spain : he was advised that by the law of England he could not do so. In 1841 some negro slaves mutinied and mur dered a passenger in the brig "Creole" and took the ship to the West Indies. At the request of the American consul the governor put a guard on board but refused to give the prisoners up to the American Government. Nineteen were tried locally for piracy and acquitted. The law authorities in England were unanimously of the opinion that they could not be given up in the absence of an act of parliament giving power to the executive. At this time France had extradition treaties with Spain, Switzerland, Belgium and Sardinia and could obtain extradition from other countries, without treaties, but not from Great Britain or the United States; from Great Britain because her laws did not allow it; from the United States because it was not then settled whether the power resided in the constituent States or in the Union. By giving effect in 1843 to the Ashburton Treaty with the United States this power was first given to the English executive. The previous chap ter of the act (6 and 7 Vic. c. 75) carried into effect a treaty with France which had been signed in the same year (1843).
27, 1888) ; Cuba (Oct. 3, 1904) Denmark (March 31, ; Ecuador (Sept. 20, 1880) ; Esthonia (Nov. 18, 1925) ; Finland (May 3o, 1924; Nov. 25, 1926) ; France (Aug. 14, 1876; Dec. 31, 1889; Feb. 13, 1896; Oct. 27, 1908; Nov. 13, 1923) ; Germany (May 14, 1872; May 5, 1894; Jan. 3o, 191I; Sept. 1, 1913; June 25, 1920) ; Greece (Sept. 24, 191 0) ; Guatemala (July 4, 1885; May 3o, 1914) ; Haiti (Dec. 7, 1874) ; Hungary (Oct. 24, 1921) ; Italy (Feb. 5, 1873; May 7, 1873) ; Latvia (July 16, 1924) ; Liberia (Dec. 16, 1892) ; Lithuania (May 18, 1926) ; Luxemburg (Nov. 24, 188o) ; Mexico (Sept 7, 1886) ; Monaco (Dec. 17, 1891); Netherlands (Sept. 26, 1898; Aug. 17, 1914; April 13, 1920) ; Nicaragua (April 19, 1905) ; Norway (Feb. 18, 1907) ; Panama (Aug. 25, 1906) ; Paraguay (Sept. 12, 1908) ; Peru (Jan.
26, 1904) ; Poland ; Portugal (Oct. 17, 1892; Nov. 3o, 1892; Jan. 1o, 1921) ; Rumania (March 21, 1893) ; Russia (Nov. 24, 1886) ; Salvador (June 23, 1881) ; San Marino (Oct. 16, 1899) ; Serbia (Dec. 6, 190o) ; Siam (Sept. 3, 1883 ; Nov. 30, 1885; March 4, 1911) ; Spain (June 4, 1878; Feb. 19, 1889; June 20, 1919) ; Switzerland (Nov. 26, 188o; June 29, 1904; July 14, 1920) ; Sweden and Norway (June 26, 1873) ; Sweden (July 2, 1907) ; Tonga (Nov. 29, 1879) ; Turkey; United States (Aug. 9, 1842; July 12, 1889; Dec. 13, 'goo; April 12, 1905; May 15, 1922); Uruguay (March 26, 1884; March 20, 1891) .
It has been said that two things stand in the way of the pro posals for uniformity in this matter which have been made from time to time : (1) the variation in the definition of crimes in dif ferent countries; (2) the fear that extradition may be made use of in order to get hold of a fugitive who is wanted by his country, not really for a criminal but for a political offence. The first difficulty is doubtless considerable but it is by no means in superable.
Two propositions seem fundamental: (1) every State can in sist that in the whole extent of its territory no laws but its own shall be recognized; (2) no State should extend beyond its own territory the application of its own penal laws. To hold otherwise is in effect to demand exterritoriality (q.v.) which can only be demanded of uncivilized nations. The criteria of civilization, it is submitted, are the rule of law (q.v.) and the impartial ad ministration of justice ; subsidiary considerations perhaps are the incidence of crimes of violence and the status of women. A simpler way of putting it is that some countries have not the same way of looking at things as others have. If the above propo sitions are sound it follows that a State ought to give up its own nationals, properly accused of having committed a crime abroad; but many countries still refuse to deliver their own nationals, though the better practice would seem to be to make the matter optional. Treaties with the following nations reciprocally refuse the extradition of their own subjects: Austria, Brazil, Denmark, Germany, Greece, Guatemala, Haiti, Hungary, Italy, Nicaragua, Norway, Portugal, Salvador, Sweden and Norway, and Uru guay. In the case of the following the surrender is optional: Argentine, Belgium, Bolivia, Chile, China, Colombia, Cuba, Czechoslovakia, Ecuador, Estonia, France, Finland, Latvia, Liberia, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, Panama, Paraguay, Peru, Rumania, Russia, San Marino, Serbia, Siam, Spain, Switzerland, Tonga, United States. Spain, Switzer land and Luxemburg, in their treaties with Great Britain, refuse the extradition of their own subjects, but Great Britain is free to surrender hers to them, subject of course to the restrictions gov erning all surrenders, contained in s. 3 of the Extradition Act of 1870. One of these restrictions is that the offence must not be of a political character nor must the requisition have been made with a view to punish a fugitive for an offence of a political character.
Extraditable offences in general are those considered heinous by the consensus of opinion of mankind, though there are some notable omissions in some treaties, particularly with respect to sexual offences. Participation in or attempt or conspiracy to commit such crimes is not covered by all treaties by any means. It is interesting to note that Rumania may refuse, and Portugal does refuse, to surrender where capital punishment (q.v.) may be inflicted. Some countries refuse to extradite if prescription (q.v.) has been acquired; such, for example, is the case with France after six years.
The procedure in extradition cases is in general not complicated though some countries fail to realize, with regard to Great Britain, the implications of the presumption of innocence and do not support their application by sufficient evidence, that is to say, the original warrant must have been obtained by evidence on oath— or affirmation where English law allows it—and must not be hearsay. The requisition is made through the regular diplomatic channels.
The return of fugitives within the British empire—that is to say between the home country and the dominions and colonies and between the dominions and colonies themselves—is not tech nically called extradition and is governed by the Fugitive Offenders' Act 1881.
See Clarke on Extradition (4th ed., 1904) ; Oppenheim, International Law, vol. i. (4th ed., 1928) ; Pitt Cobbett's Cases on International Law, nth ed., vol. 1. (F. T. G.) United States.—In the absence of treaty, the United States has consistently refused to surrender fugitive criminals. Begin ning with the Jay Treaty of Nov. numerous extradition treaties have been concluded between the United States and other civilized nations. Recent treaties have tended to broaden the scope of extraditable offences, the convention with France of 1909 making breach of trust under certain circumstances by a person acting in a fiduciary capacity an extraditable offence. Political offences are excepted from the provisions of these treaties either in express terms or by implication. Most treaties in express terms except nationals of the State of asylum from their provisions. In the absence of such an express provision the United States has taken the position that nationals of both contracting parties are extraditable.
The commitment of the person sought to be extradited is effected by resort to judicial authority. Specific provision has been made since 1845 by act of Congress for the procedure to be followed in extradition proceedings. Any Federal judge, U.S. commissioner, or judge of a court of record of general jurisdic tion of any State, may act as a committing magistrate, issuing warrants of arrest and passing upon the sufficiency of the evidence to establish the crime charged. His function is not to determine the ultimate guilt of the fugitive but simply to determine whether the evidence is sufficient to warrant trial before the courts of the demanding country, together with the question of whether the offence charged comes within the applicable treaty provisions. The determination of whether the offence is of a political char acter is consequently a judicial function. To establish a political offence it is necessary to show that the accused was connected with an uprising of a revolutionary character in the demanding State and that the acts charged were incidental to his participa tion in the movement. The jurisdiction of the committing magis trate can be reviewed by habeas corpus, but such review extends only to the sufficiency of the evidence and not to the correctness of the magistrate's conclusions therefrom. A revisory power over the final commitment is possessed by the Secretary of State of the United States, but such power is exercised within very narrow limits.
In contradistinction to interstate rendition, U.S. courts can try an extradited criminal only for the offence with which he was charged in the extradition proceedings, unless reasonable time has been given him after his release to return to the country from which he was extradited.
Interstate extradition rests upon the provisions of Article Iv., Sect. 2, of the Constitution of the United States, which requires a State to which a person charged with "treason, felony, or other crime" in another State has fled to surrender him upon the demand of the latter State. Legislation necessary to carry the constitutional provisions into execution was enacted by Con gress in 1793. The extraditable offences are not limited to serious felonies but include all acts made criminal by the demanding State. By the rules adopted by the International Extradition Conference of 1877 requisitions for petty offences, however, are not to be honoured save in exceptional circumstances. Inter state extradition differs from international extradition primarily in two particulars : the duty of the State asylum to surrender the fugitive does not rest on treaty or comity but upon the im perative command of the Constitution ; the proceedings relating to interstate extradition are informal in character, conducted be fore the executive, no hearing being required and the executive being enabled to act even in the absence of the accused and with out notice to him.
See Hyde, International Law; Moore, Extradition and Interstate Rendition; Hawley, Law and Practice of International Extradition.
(J. M. LA.)