or destroyed by actual proof of the exclusive title of one of the riparian proprietors to the entire river1. Secondly, that the right of navigating a river which flows through the territory of different states is common to all the nations inhabiting its banks. But this right of innocent passage, as it has been sometimes called, may be modified according to the convenience of the parties affected by it, and must be secured by mutual conventions regulating its mode of exercise. Thirdly, that this right of innocent passage draws with it that of using the banks, but here also the mutual convenience of the parties affected by it must be consulted. Fourthly, that where a navigable river separates or runs through several states its navigation is free from the point where it first becomes navigable to the point of its discharge into the sea. Fifthly, that while the free navigation of the rivers running through or bounding several states is maintained, the riparian states may exercise rights of sovereignty in such rivers. And lastly, that whilst the regulations for pre 1 Wheaton's Elements, ed. 1863, Vol. I. Part II. ch. iv. § 11, and Twee Gebræders, 3 Rob. Adm. Rep. 338-340. 2 Wheaton's Elements, Vol. 1. Part II. ch. iv. § 12. Heffter, Droit Internat. § 77. Halleck, International Law, §§ 26–28. $27. 3 Wheaton, Vol. 1. Part II. ch. iv. § 13. Halleck, International Law, 4 Phillimore, Vol. 1. § 144. Heffter, Droit Internat. § 77. 5 [The navigation of the great rivers of Europe has been provided for by two modern treaties, that of Vienna in 1815, and that of Paris in 1856; by the former the Rhine, the Neckar, the Mayn, the Moselle, the Meuse, the Scheldt and the Vistula have been proclaimed free, and several regulations for them provided in the 11th annexe to the treaty. See the Annexe in Hertslet's Treaties, Vol. I. p. 2, and in Phillimore, Vol. I. p. 173, n. 3. By the latter the freedom of the Danube has been established. By the treaty of June 4, 1856, made between Great Britain and the United States, and known as the Reciprocity Treaty, the navigation of the St Lawrence, which had been in dispute between those two countries ever since 1826, was settled, it being agreed in the fourth article of that treaty that the navigation of the St Lawrence and the canals in Canada, the means of communication between the great lakes and the Atlantic Ocean, should be free to the inhabitants of the United States, power being reserved to the British Government to suspend the privilege, and the navigation of Lake Michigan being thrown open to British subjects. (Wheaton's Elements, ed. of foreigners. serving and maintaining the proper navigation of these rivers must be drawn up and established in common by all the states interested in and connected with them, they cannot be changed or altered by any one separate state1.] When foreigners are admitted into a state upon free and Extradition liberal terms, the public faith becomes pledged for their protection. The courts of justice ought to be freely open to them to resort to for the redress of their grievances. But strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law. It has sometimes been made a question, how far one government was bound by the law of nations, and independent of treaty, to surrender, upon demand, fugitives from justice, who, having committed crimes in one country, flee to another for shelter. It is declared by the public jurists, that every state is bound to deny an asylum to criminals, and upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime was committed. The language of the authorities is clear and explicit, and the law and usage of nations rest on the plainest principles of justice. It is the duty of the government to surrender up fugitives upon demand, after the civil magistrate shall have ascertained the existence of reasonable grounds for the charge, and sufficient to put the accused upon his trial. 1863, Vol. I. Part I. ch. iv. p. 360, n. 114. United States Statutes, Vol. x. p. 1089, and 18 and 19 Vict. c. 3.) In consequence of a discussion upon certain expressions in the Treaties of 1814 and 1815, relating to the navigation of the Rhine, the convention of March 31, 1831, settled that the navigation of that river should be free from the point where it becomes navigable into the sea, including its two principal outlets, the Leck and the Waal. See for the discussion Wheaton's Elements, Vol. I. pp. 348-352.] 1 Heffter, Droit Internat. § 77. * See Debate, House of Lords, March 1853, Hansard, 3rd series, CXXIV. p. 1046. Lord Lyndhurst's speech cited at length in Vol. I. of Phillimore's International Law, pp. 415, 416. 3 Grotius, B. II. ch. XXI. sec. 3, 4, 5, and Heineccius's Com. h. t. Burlamaqui, Part. IV. ch. III. sec. 19. Rutherforth, B. II. ch. 9. Vattel, B. 11. ch. VI. sec. 76, 77. See Questions de Droit, tit. Étranger, par Merlin, for discussions on this subject in France. The guilty party cannot be tried and punished by any other jurisdiction than the one whose laws have been violated, and therefore, the duty of surrendering him applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive. The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety. The act of the legislature of New York, of the 5th of April, 1822, ch. 148, gave facility to the surren der of fugitives, by authorizing the Governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. Such a legislative provision was requisite, for the judicial power can do no more than to cause the fugitive to be arrested and detained, until sufficient means and opportunity have been afforded, for the discharge of this duty, to the proper organ of communication with the power that makes the demand'. The European nations, in early periods of modern his 1 [In the following cases, for which we are indebted to the last American edition of Kent's Commentaries, will be found the English and American doctrines generally on the subject of extradition : ENGLISH. R. v. Hutchinson, 3 Keble. Lundy's case, 2 Ventris. R. v. Kimberley, Strange, 848. East India Company v. Campbell, 1 Vesey, 246. AMERICAN. In the matter of Washburn, 4 Johnson, Ch. Rep. 106. Ex parte Holmes, 12 Vermont Rep. 631.] dition trea tory, made provision by treaty for the mutual surrender of criminals seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, and England and France in 1308, and France and Savoy in 1378, and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr Ward' considers these treaties as evidence of the advancement of society in regularity and order. [At the present time Great Britain has three extradition treaties. One with France, dated 13th February, 1843, which was followed by British extrathe Act 6 and 7 Vict. c. 75; one with the United States, ties. dated August 9th, 1842, followed by the Act 8 and 9 Vict. c. 120; and one with Denmark, dated April 15th, 1862, followed by the Act 24 and 25 Vict. c. 70. The first provides under certain terms specified therein for the mutual surrender of persons seeking an asylum within each other's territories, and being accused of murder, forgery, or of fraudulent bankruptcy. The second provides under certain terms also specified therein for the mutual surrender of all persons charged with the crime of murder, piracy, arson, robbery, and forgery, or utterance of forged paper. The two most remarkable cases in which this latter treaty has been involved are of very recent date, and deserve a short notice. The first of these was in the matter of John Anderson, a fugitive slave, who having Case of in the United States killed one of his pursuers, and taken refuge in Canadian territory, was claimed as a murderer under the Treaty. The case was carried into two of the Canadian courts. In the Queen's Bench, in answer to the argument for the prisoner, that as he was acting only in defence of his liberty there was no evidence on which to found a charge of murder, even if the alleged offence had been committed in Canada, and that therefore he was not within the terms of the Treaty, it was held that he 1 Hist. of the Law of Nations, Vol. II. 318-320. 2 But on the 5th March, 1864, a convention was signed between Her Majesty and the King of Prussia for the mutual surrender of Criminals. Anderson. Case of was liable to be surrendered' (Mr J. M'Lean dissenting from the opinion of the majority of the Court). Whilst in the Common Pleas, it was held that the act committed by him did not come within the terms of the Treaty, and in consequence the prisoner was discharged; but between the appearance of these two opposite judgments an application had been made to and granted by the Court of Queen's Bench in England for a writ of habeas corpus ad subjiciendum”, and in consequence of this an act of Parliament was passed, the 25th and 26th Vict. c. 20, by which it was enacted that no writ of habeas corpus should issue out of England into a colony having a court authorized to grant the same. The other case was that of Franz Müller, who being charged with, and eventually found guilty and executed in England for the murder of Mr Briggs, on the North London Railway, near Hackney, had escaped from England and was captured in New York. Some attempt was made by the prisoner's counsel to excite popular feeling in New York in favour of the prisoner, on the ground of the strong anti-federal feeling in England, the defence being that the treaty was suspended by the action of the British government; but the case was held to be undoubtedly within the act, and the prisoner was at once remanded to the place where the crime was committed'.] 1 In the matter of John Anderson, 20 Upper Canada Q. B. Reports, p. 124, and 11 Canada C. P. Reports, 1, In Re John Anderson. 2 30, Law Journal, C. L., Q. B. 129. 3 See Times newspaper, September 9th and 13th, 1864. 4 [For French views on the subject of extradition reference may be made to Ortolan, Dipl. de la Mer, L. II. ch. xiv. § 323. Merlin, Répert, du Droit, tit. Souveraineté. Massé, Droit Comm. T. II. § 44, and a note by M. Vergé to Martens' Droit des Gens, ed. 1858, T. 1. pp. 267-273. For German views to De Marten, L. III. ch. iii. § 101. Klüber, Droit des Gens, § 86, with M. Ott's note, ed. 1861. Heffter, Droit Internat. § 63. English views:-Phillimore's Internat. Law, Vol. 1. ch. xxi., and Earl Russell's letter to Mr Adams, June 12, 1862. Official Papers (North America), No. 4, p. 164. American:- Wheaton's Elements, ed. 1863, Vol. 1. Part II. ch. ii. § 13. Story's Conflict of Laws, §§ 626-628. Halleck on International Law, § 28.] |