Abbildungen der Seite
PDF
EPUB

legitimate children is the domicile of the father at the time of birth, and in the case of illegitimate children, that of the mother at the same time, or a domicile of choice, which is the domicile deliberately adopted by a person of full age." 1

For testamentary and general purposes an alien can be said to have but one domicile; but for commercial purposes it is considered by many authorities that he may have more than one, as his place of business may be in one country while his residence is in another; or he may be a partner in several commercial houses situated in several different countries. A domicile may be changed by taking up a residence in another country with the intention of remaining there. Mere absence from a previously fixed residence does not involve a change of domicile without an intention duly declared. "Students are not considered as acquiring a domicile in the place where they sojourn merely for the purpose of prosecuting their studies. Servants may or may not have the same domicile as their masters, according to the particular circumstances of the case."

2

90. Extradition. By extradition is meant the delivery, to accredited authorities, of criminal fugitives or persons accused of crime committed in one country, upon the request of the government of the country in which the crime was committed, by the government of the country in which they have sought refuge. This is not considered to be an obligation under international law but is one proceeding from treaty obligations, or one that is granted as a matter of comity and mutual convenience. As to the United States, it has been ruled by AttorneyGeneral Legare that without the consent of Congress no State of the Union can enter into any agreement, express or implied, to deliver up fugitives from the justice of a foreign state who may be found within its limits.3

As a rule, states refuse to extradite their own citizens or subjects. England and the United States are exceptions to this

1 Westlake, "Private Int. Law," secs. 243, 253.

2 Halleck, Baker's 4th ed., vol. I, p. 456.

'Legare, Att.-Gen., 1841, 3 Op. 661.

rule. This arises from the fact that so far as the United States is concerned, we do not, except in case of such international crimes as piracy and the slave-trade, punish our citizens for crimes committed beyond our territory and England punishes her subjects only for such crimes as treason, murder, bigamy, etc., when committed abroad.

In the absence of a clause expressly exempting nationals from extradition, the State Department at Washington holds that they should be surrendered upon demand.1

This ruling was upheld in the recent case of Charlton, an American, who was extradited to Italy, being charged with the murder of his wife at Lake Como, notwithstanding that Italy had previously refused to deliver up her subjects to the United States, the extradition treaty between the two countries containing no such exemption.

It is now considered to be an established rule that a criminal must be tried only for the offence named in the demand for extradition. Political offenders are not subjects for extradition according to established usages. Just what may be called a political offender is somewhat difficult to define, and with us a committing magistrate has jurisdiction and it becomes his duty to determine whether the offence charged is or is not of a political character.

Some cases are given in the following paragraphs, which show the difficulties attending the subject of political offenders, especially if attended with the charge of murder.

"In June, 1894, the British Government, after full consideration of the question by the court of Queen's Bench, delivered up to France a fugitive from justice who was charged with causing the explosion at the Café Véry, in Paris, as well as another explosion at certain government barracks. The court held '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'

1 Hershey's "Essentials," p. 265.

and that the offence must be 'committed by one side or the other in pursuance of that object.'"'1

"An interesting case occurred on March 31, 1891, in Buenos Ayres, in regard to a mutiny which occurred on board the Chilian gunboat Pilcomayo, then lying at the docks. At the request of the commanding officer twelve of the mutineers were taken in charge by the local police, with the further request from the Chilian minister that they be held in custody until the Pilcomayo was ready to sail for Chile, in order that they might be taken there for trial. The Pilcomayo was being partially dismantled at the time by the order of the Chilian Government, after which she was to be taken to Chile and placed out of service. The mutineers obtaining a writ of habeas corpus, the judge of the federal court decided that the exemption of a man-of-war from the local jurisdiction did not extend to the conferring of jurisdiction over persons in foreign territory in charge of foreign authorities and that the Chilian minister, by requesting the men to be taken from on board the vessel of war under the Chilian flag and placed in the custody of the Argentine authorities, had lost the right to remove them to Chile and have them tried there. It was also intimated that by dismantlement the Pilcomayo had lost its character as a vessel of war. On appeal from this decision the Supreme Court of the Argentine Republic 'held that as the mutiny appeared to be for political reasons, it was to be considered as a political offence; that as the mutineers were brought on shore and delivered to the Argentine authorities because of the inability to retain them on board the vessel, their return to the representative of Chile could not be granted without violating the exemption of political offenders from extradition; that their delivery up would also violate the principle of public law, which protects prisoners of war, whether public or insurrectionary, from surrender; and that it is a rule of international law that where acts of hostility are committed by foreign in

1 Moore's "Digest," vol. IV, p. 354.

surgents in territorial waters of another state, only the vessels or things taken from them, and not the persons, are to be delivered up."

[ocr errors]

91. Extradition of Deserters. In regard to the arrest or extradition of deserters from ships of war, it has been held both by the State Department and the federal courts that in the absence of treaties to that effect officials of the United States cannot at home arrest foreign seamen as deserters from foreign vessels, even upon the request of the consular or other officers of foreign governments, and that it is naturally improper in reciprocal cases for our consular or other authorities to cause foreign officials to arrest deserters from our ships in the absence of treaties authorizing and providing for such arrest. In the case of Tucker v. Alexandroff there were circumstances surrounding this case which involve several interesting questions as to the return and extradition of a deserter, so that it is considered desirable to narrate the matter in full as given by Moore in his "Digest."

"Leo Alexandroff, a conscript in the Russian naval service, was sent in October, 1899, as one of the detail of fifty-three men under command of an officer, from Russia to Philadelphia, to take possession of and man the Russian cruiser Variag, then under construction by the firm of Cramp & Sons in that city. .. The Variag was still on the stocks when the detail of men arrived in Philadelphia. She was launched in October or November, 1899, and was lying in the stream still under construction, not having been accepted by the Russian Government, when on April 20, 1900, Alexandroff went to New York and declared his intention to become a citizen of the United States. He was subsequently arrested upon the written request of the Russian vice-consul, and on June 1, 1900, was committed on a charge of desertion. By Article IX of the treaty between the United States and Russia of 1832, the consular representatives of the contracting parties were authorized 1 Moore's "Digest," vol. IV, pp. 351-2.

to require the assistance of the local authorities for the recovery of 'deserters from the ships of war and merchant vessels of their country'; and it was stipulated that for this purpose they should apply to the competent tribunals, and 'in writing demand said deserters, proving, by the exhibition of the registers of the vessels and rolls of the crews or by other official documents established, that such individuals formed part of the crews.' Alexandroff was committed under Section 5280, Revised Statutes of the United States, which provides, in language similar to that just quoted, for the recovery of deserters from vessels of governments having treaties with the United States on the subject. It was contended that the treaty and statute were inapplicable to Alexandroff for the reasons (1) that the Variag was not yet a Russian ship of war, (2) that he was not a deserter from such ship, and (3) that his membership of the crew was not proved by the exhibition of the register of the vessel, her crew roll, or by any official document. It was held, however, by the court that the Variag, inasmuch as she had been launched and was lying in the stream when Alexandroff deserted, was a ship within the meaning of the treaty; that she was also a Russian ship of war within the meaning of the treaty, notwithstanding that she had not been finally accepted and taken possession of by the Russian Government and that the Russian flag had never been hoisted upon her; that Alexandroff consequently was a deserter from a Russian ship of war within the meaning of the treaty; and that, as it was admitted and appeared by the record in the case, Alexandroff came to the United States as a member of the Russian navy for the express purpose of becoming one of the crew of the Variag, it could not properly be objected in his behalf that no official documents were produced, especially as it appeared that on the trial of the case below, Alexandroff, through his counsel, waived the production of the passport issued by the Russian Government to the men detailed to man the vessel." 1

1 Stockton's "Manual," pp. 74–77.

« ZurückWeiter »