Document Type

Article

Publication Date

1888

Abstract

It is a well-established principle of law that criminal prosecutions are local and not transitory. A wrong-doer whose wrong consists in a civil injury, or arises out of a breach of contract, can ordinarily be required to answer for the wrong done wherever he may be found. But a different principle is applied to the case of one who has committed a crime. As one nation does not enforce the penal laws of another, and as the process of the courts of a state can confer no authority beyond its own territorial limits, punishment can be avoided by escaping from the boundaries of the government where the crime was committed, unless the state whose asylum is sought shall decline to harbor the offender. That international law imposes no obligation to surrender the fugitive is now understood, although at one time so distinguished an authority as Chancellor Kent contended that every state is obliged, by the law of nations, to refuse an asylum to such persons, provided their surrender is asked for by the offended government. But inasmuch as" no such obligation is imposed by the law of nations, the right to require such a surrender to be made can be secured only under treaty stipulations. It is quite true that there have been instances where fugitives from justice have been. surrendered by one nation to another without an)T treaty on the subject. Such instances are few, and the surrender has been made on principles of comity. The surrender of Argueles by the United States to Spain in 1864 W88 a case of this kind. At that time there was no extradition treaty between the two countries, but Mr. Seward, then secretary of state, made the surrender with the consent of President Lincoln. A few years later there was another case of the same kind, when Spain surrendered to our government the notorious William M. Tweed. The action of our government in the Argueles case has been generally and unsparingly condemned as a naked usurpation of power on the part of the executive. A matter of such grave importance must be governed by established rules, and not left to the arbitrary fancy or whim of a department of government. Moreover, if the executive department of our government has no right to surrender a fugitive on principles of comity, neither can it with any propriety ask a foreign power to make such a surrender to us. It ought not to ask a favor which it cannot return.


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