page 35 note 1 The French Ministry of Public Works published in 1873 the following figures which show the great increase in the speed of transportation resulting from the use of the railroad and the steam locomotive:

Average speed of stage-coach including stops: 1814 4.3 kilometres per hour.

1830 6.5 “ “ “

1848 9.5 “ “ “

Average speed of railroad trains including stops, since 1856 35 to 72 “ “ “

The trip from Paris to Geneva, which in 1848 required 60 hours by stage-coach, could, in 1883, be accomplished by train in from 11 hours and 30 minutes to 17 hours and 40 minutes, depending on the circumstances.

page 36 note 1 See: Hadley, Railroad Transportation, Its History and Its Laws (1896); Picard, Traité des Chemins de Fer (1887); Raper, Railway Transportation (1912); Ross, “Railways,” in 22 Encyclopœdia Britannica (11th ed., 1911), p. 819 et seq.

page 36 note 2 In 1839 the steamship people in their efforts to inform the public as to the superiority of their vessels, published among others the following figures:

Average Atlantic crossing—sail   34.1¼ d Wwd 22.1   d Ewd

steam 17 “ “ 15.4¼ “ “

page 36 note 3 See: Abbott, American Merchant Ships and Sailors (1902); Benedict, “Steamship Lines,” in 30 Encyclopœdia Britannica (11th ed., 1911), p. 860 et seq.; Bowen, A Century of Atlantic Travel, 1830–1930 (1903); Day, A History of Commerce (1922).

page 36 note 4 21 Encyclopœdia Britannica (14th ed., 1929), p. 882.

page 37 note 1 15 Encyclopœdia Britannica (14th ed., 1929), p. 891.

page 37 note 2 22 New International Encyclopedia (1916), p. 61.

page 37 note 3

(15 Encyclopœdia Britannica (14th ed., 1929), p. 895; World’s Almanac (1934), p. 533.)

page 37 note 4 15 Encyclopœdia Britannica (14th ed., 1929), p. 900.

page 37 note 5 2 Air Law Review (1931), pp. 107, 108; 18 Encyclopœdia Britannica (14th ed., 1929), pp. 885,886.

page 38 note 1 See the full treatment in Draft Convention on Jurisdiction with Respect to Crime, Research in International Law (1935), infra, p. 435.

[The following footnotes are to the text of the author quoted:

page 39 note 1 Cours de droit public, t. ii. § 12.

page 39 note 2 “The conception of an abstract law, generally applicable in all places, can only be an ideal towards which we can tend, without flattering ourselves that we shall ever completely attain it.” M. Brocher, Inst, de droit int., 1879–80, t. i. p. 53.

page 39 note 3 Foelix, Droit int. privé, t. ii. tit. ix. ch. 4.]

[The following footnotes are to the text of the author quoted:

page 40 note 1 Lewis, Foreign Jurisdiction and the Extradition of Criminals, p. 29 et seq.

page 40 note 2 The superiority of the territorial competence over every other is now universally accepted. See Report on Extraterritorial Crime and the Cutting Case, by the writer of this work. Washington, Government Printing Office, 1887.

page 40 note 3 In 1889 the government of General Légitime at Port-au-Prince, Hayti, published a decree (Le Moniteur, May 2, 1889) stating that it had been decided to expel from the territory of the republic all foreigners condemned in their own country to afflictive and infamous punishments. The Minister for Foreign Affairs was directed to obtain information from the ministers, chargés d’affaires, and consuls of the various powers represented in Hayti, to the end that the decision might be given effect.

In Gachard’s Analectes historiques, vol. i, p. 380, there is an interesting circular letter of the Duke of Alva to the tribunals of justice and governors of provinces of the Netherlands, touching the measures to be taken against vagabonds, fugitives, and other bad fellows: November 27, 1571.

page 40 note 4 Bluntschli, Le Droit int. cod,, §394; 2d ed., Paris, 1874. Lewis, Foreign Jurisdiction and the Extradition of Criminals, pp. 68–72. 2 Rev. de droit int. (1870), p. 191, article by Dr. Christian Neumann. Heffter, Bergson’s ed., §63. Decree of Minister of Interior, Le Moniteur, Port-au-Prince, May 2,1889. Taney, Ch. Jus., in Holmes v. Jennison, 14 Pet. 540, 568.

page 40 note 5 Bomboy & Gilbrin, Traitè pratique de l’extradition, p. 8.]

page 41 note 1 Grotius, De Jure Belli ac Pacis (The Classics of International Law, 1925), Vol. II, Bk. II, ch. 21, p. 527.

page 41 note 2 Vattel, The Law of Nations (1760), Vol. I, Bk. II, §76, p. 145.

page 41 note 3 Kent, , Commentaries on American Law (1896), Vol. I, pp. 47–50 Google Scholar.

page 41 note 4 Wheaton, , Elements of International Law (6th Eng. ed., 1929), p. 212 Google Scholar; Bluntschli, Le droit international codifié ,(Fr. ed. 1870), §§395, p. 218; Oppenheim, , International Law (4th ed., 1928), Vol. I, p. 565 Google Scholar; Hyde, International Law (1922), I, §310, pp. 566–568; Moore, Extradition (1891), I, §§9–14, pp. 13–19; Clarke, Extradition (4th ed., 1903), p. 3, note b. It is generally agreed in the United States that there is no power to extradite without authority by treaty or statute. Moore, op. cit., §§16–27, pp. 21–35.

page 41 note 5 Moore, Extradition (1891), I, §§70 and 71, pp. 79 to 82, and §§452 to 515, pp. 697 to 816; Hyde, International Law (1922), I, §312, p. 569; Biron & Chalmers, Extradition (1903), p. 14. See the national statutes in Appendix VI.

page 41 note 6 Billot, Traité, de l’Extradition (1874), pp. 35 to 37; Bonafos, De l’Extradition (1866), pp. 7’15; Aupècle, L’Extradition et la Loi du 10 Mars 1927 (1927), pp. 11 ff; Clarke, Extradition (4th ed., 1903), pp. 16–26. Cf. Phillipson, International Law and Custom of Ancient Greece and Rome (1911), Vol. I, p. 358 et seq.

page 41 note 7 Billot, op. cit., pp. 37 to 46; Aupècle, op. cit., p. 10; Moore, op. cit., §7, pp. 10 and 11; Moore, Principles of American Diplomacy (1918), pp. 424, 425.

page 41 note 8 Report from Select Committee [of the House of Commons] on Extradition (1868), p. viii and par. 432, p. 24.

page 41 note 9 Ibid., pp. 146–148; Billot, op. cit., p. 415.

page 42 note 1 “Art. 20. II est convenu que les parties contractantes sur les réquisitions faites par elles respectivement ou par leurs ministres et officiers dûment autorisés à cet effet, seronttenus de livrer en justice les personnes accusées de meurtre, de falsification ou banqueroute frauduleuse commis dans la juridiction de la partie requérante, pourvu que cela ne soit faitque lorsque l’évidence du crime sera si bien constatée que les lois du lieu où l’on découvrira la personne ainsi accusée, auraient autorisé sa détention et sa traduction devant la justice aucas que le crime y eût été commis. Les frais de la prise de corps et de la traduction en justice seront à la charge de ceux qui feront la réquisition; bien entendu que cet article ne regarde en aucune manière les crimes de meurtre, de falsification et banqueroute frauduleuse commis antérieurement à la conclusion de ce traité definitif.” (English translation in Appendix III, No. 1.) See Bernard, Traité Théorique et Pratique de l’Extradition (2d ed., 1890), I, pp. 415, 416.

page 42 note 2 Clarke, Extradition (4th ed., 1903), p. 127.

page 42 note 3 The United States had no extradition treaty before 1842 (except for a provision in the Jay Treaty from 1794 to 1807), but in 1868 it had 13 such treaties. Report from the Select Committee [of the House of Commons] on Extradition (1868), par. 432, p. 24; and by 1880 it had entered into 25, Moore, Extradition (1891), II, pp. 1060–1162, where the texts are set out. France concluded 12 extradition treaties between 1736 and 1838, while she entered into 41 such treaties between 1844 and 1860, Report from Select Committee, ibid., p. 149, where a table of the treaties is given. Great Britain had extradition treaties with the United States (1842), France (1843), Denmark (1862), before 1870, but during the next decade she entered into eleven such treaties. Clarke, op. cit., Appendix.

page 42 note 4 See the full discussion in Bernard, L’Extradition (2d ed., 1890), I.

page 42 note 5 “During the brief period when migrations took on, at least in appearance, one of the characteristics of dispersion—that of being beneficial to all concerned,—an optimistic philosophy was developed, and many traditions and dogmas set up, parading under the guise of ‘liberality,’ humanitarianism, brotherhood, equality, and international good will, but in reality resting on the assumed advantage of the receiving state.” (Fairchild, Immigration (1925), p. 475.)

“In 1812, when the political liberty of the Argentine was still menaced, that country published a decree assuring protection to all foreigners who came with the intention of establishing themselves at La Plata. On the fourth of September of the same year the president Rivadavia addressed his famous appeal to the immigrants of the whole world. In it he said that the young government offered its protection to people of all nations and to their families who desired to settle on the territory of the Republic and that it guaranteed them the exercise of all the rights of man in society with the single condition that they not disturb the public order and respect the laws of the country.” (Varlez, Les Migrations Internationales et lew Réglementation (1929), p. 38.)

page 43 note 1 Martitz, Internationale Rechtshilfe in Strafsachen (1888), I, p. 12 n.

page 43 note 2 “It is holden and so it hath been resolved that divided kingdoms under several kings, in league one with another, are sanctuaries for servants or subjects flying for safety from one kingdom to another; and upon demand made by them, are not, by the laws and liberties of kingdoms, to be delivered.” Coke’s Institutes (1817), Vol. III , p. 180.

“It has been the glory of this country to afford asylum to the persecuted foreigner. That is a glory which I hope ever will belong to this country. That asylum, however, remember, amounts to this, that foreigners are at liberty to come to this country and to leave it at their own will and pleasure, and that they cannot be disturbed by the Government of this country as long as they obey our laws; and they are under the same laws as native-born subjects, and if they violate those laws they are liable to be prosecuted and punished in the same manner as native-born subjects.” Regina v. Bernard, 8 State Trials, N. S., 887, 1061 (1858).

The protests of Jefferson and Madison against the Alien and Sedition Laws, in so far as they applied to aliens, were based on the supposition that there was a lack of constitutional power in Congress to enact laws restricting alien friends, and in the Presidential Message of Jefferson, of 1801, which marked the death of the Alien and Sedition Laws, we have the expression of early American sentiment with regard to asylum: “Shall we refuse the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our forefathers arriving in this land? Shall oppressed humanity find no asylum on this globe?” Kohler, , “The Right of Asylum with Particular Reference to Aliens,” 51 American Law Review (1917), 381, 382 Google Scholar.

As late as 1884 the Democratic platform, upon which Cleveland was elected speaks of “the liberal principles embodied by Jefferson in the Declaration of Independence and sanctioned in the Constitution, which makes ours a land of liberty and the asylum of the oppressed of every nation,” which “have ever been cardinal principles of the Democratic faith.” (Ibid.)

page 43 note 3 Varlez, , Les Migrations Internationales et lew Réglementation (1929), p. 54 Google Scholar.

page 43 note 4 18 United States Statutes at Large, p. 477. In 1882, provision was made for the return of alien convicts to the countries of their origin, and polygamists, prostitutes, diseased persons and the insane were added to those to be excluded, 22 United States Statutes at Large, p. 214.

page 44 note 1 32 U. S. Stats, at L., p. 1214 (1903). Speaking of the change of policy on immigration after 1875, it has been said:

“For many decades Americans have hesitated to lay an embargo upon this inspiring westward movement. It was our proudest boast—our highest ideal—that America was to be the haven of the world’s oppressed. So long as we had free lands in the West, so long as each new immigrant added inevitably to the wealth of his neighbors, this ideal was rooted in the economic conditions. But in the course of time we deeded away the continent which was to have been the home of the oppressed, and, year by year, we found it more and more impossible to deflect the broader stream of immigration from the congested districts of our cities. To-day the ideal is in conflict with our economical and political conditions. Failing its economic root, the ideal has degenerated into a tradition. …” Weyl, The New Democracy (1912), p. 346.

page 44 note 2 Congressional Record, 63rd Congress, 3rd Session, Vol. 52, Pt. 3, pp. 2481–2482.

page 44 note 3 39 U. S. Stats, at L., p. 874 (1917).

page 44 note 4 42 U. S. Stats, at L., p. 5 (1921).

page 44 note 5 On this point there is the report of the Immigration Commission made in 1908 after a careful study of the matter of crime among the immigrants, containing the following statement:

In response to the questions, “Is the volume of crime in the United States augmented by the presence among us of the immigrant and his offspring?” and “If immigration increases crime, what races are responsible for such increase?” the Commission says that no satisfactory answer has ever been made, or can ever be made, without much more complete data than have ever been collected or are available.

See also No. 10 of the Publications of the National Commission on Law Observance and Enforcement (Wickersham Commission), entitled “Report on Crime and the Foreign Born” (1931).

In England, on the other hand, the reports of commissions of inquiry as to criminality and poverty among immigrants led directly to the passage of the Alien Act of 1905. (Monnier, Les Indésirables (1907), p. 65 et seq.) This bill excluded persons who were diseased or criminal, or likely to become public charges, but exempted those who could prove that they sought admission to avoid prosecution or punishment on religious or political grounds. (5 Ed. 7, ch. 13) The debates preceding the passage of this bill brought forth full discussion of the doctrine of “right of asylum” in England, which evidenced the hazy concepts on this subject of many of the members of the House of Commons:

Maj. EVANS GORDON: “Now what is this so-called right of asylum? As far as I understand it, it amounts to this, that this country has consistently refused to surrender persons who, having committed a political and non-extraditable offense abroad have sought a refuge here. But the right of asylum may be interpreted in a far wider sense. It may be said, that we are bound by some unwritten law to admit any one who states that he is persecuted in his own country. If that contention be accepted, then, there is an end to any restrictive legislation.” Parliamentary Debates, 4th series, Vol. CXLV (1905), p. 711.

Mr. AKERS-DOTJGLAS: “I was about to point out that there is no such thing as a ‘right’ of asylum, but the practice which has existed of welcoming foreigners who were flying from political or religious prosecution in their own lands.” Ibid., p. 751.

Mr. A. J. BALFOUR: “What was understood by the right of asylum in the old days was this. We supposed ourselves, and with considerable reason, to be the best governed country in Europe. We were aware that there were a great number of countries where tyranny prevailed and where it produced, as a natural consequence, conspiracies and in many cases armed rebellion; and we prided ourselves upon giving an asylum to the protagonists in a cause which we regarded as, with some exceptions, the cause of freedom.” Ibid., p. 799.

page 45 note 1 Lammasch, Auslieferungspflicht und Asylrecht (1887), p. 6, n. 5.

page 45 note 2 Aupècle, L’Extradition et la Loi du 10 Mars 1927 (1927), p. 16.

page 45 note 3 Billot, Traité de l’Extradition (1874), pp. 109–112; M. Treitt’s evidence in Report from Select Committee [of the House of Commons] on Extradition (1868), pars. 1294–1298, pp. 67 and 68; Circulaire du Ministre de la Justice du 5 avril 1841, loc. cit, p. 146, and Billot, op. cit., p. 415.

page 45 note 4 Moore, Extradition (1891), I, §8, p. 12, citing Senate Documents, 28th Congress, 1st Session, Vol. III , p. [125], 1843–44. It should be remembered, however, that Jefferson, though a strong believer in the right of asylum as it affected immigration, nevertheless believed in extradition of criminals and wrote an interesting opinion for Washington in 1791–2, refusing to follow British precedents and advising the negotiation of extradition treaties. Kohler, , “Right of Asylum with Particular Reference to Aliens,” 51 American Law Review (1917), p. 405 Google Scholar.

page 45 note 5 Moore, op. cit, §8, p. 12.

page 46 note 1 Report from Select Committee [of the House of Commons] on Extradition (1868), par. 161, p. 9.

page 46 note 2 Ibid., par. 160, p. 9.

page 46 note 3 Moore, Extradition (1891), I, §§205–207, pp. 303–307; Oppenheim, International Law (4th ed., 1928), I, §331, p. 571. See Comment to Articles 5, 6 and 25, Reservation No. 1, of this Convention.

page 46 note 4 Loi sur les Extraditions, l^er octobre 1833, Bulletin Officiel, No. 77. See Martitz, Internationale Rechtshilfe (1897), II, pp. 747 to 818 for history of such laws.

page 46 note 5 United States Constitution, Art. VI.

page 46 note 6 See Appendix VI, No. 15.

page 46 note 7 Clarke, Extradition (4th ed., 1903), ch. V, pp. 121–207; Piggott, Extradition (1910), pp. 29–42. Appendix VI, No. 8.

page 46 note 8 Travers, L’Entr’aide Répressive Internationale et la Loi Francaise du 10 Mars 1927 (1928), §13, p. 14. See the Circulaire duMinistre de la Justice du 5 Avril 1841, loc. cit., pp. 146–148, and in Billot, Traité de l’Extradition, p. 415, which took the place of statutory direction to French officials. For present French Statute see Appendix VI, No. 6.

page 46 note 9 Canadian Extradition Law of 1927, Appendix VI, No. 4. Moore, Extradition (1891), I, §449, pp. 692–694; French law of 1927, see Appendix VI, No. 6, Travers, op. cit.; German law of 1929 (see Appendix VI, No. 7).

Mr. Hammond, representing the Foreign Office, urged in 1868 that Parliament pass an extradition law “leaving it open to other States to agree to give up criminals to us, and to take the benefit of our law, and our definition of crime so far as they went, in order to obtain criminals from us,” and do away with extradition treaties. Report from Select Committee, ibid., par. 185, p. 10. For many years it appears to have been an early practice with regard to the British Colonies for extradition to be arranged between them and other countries by local legislation, without treaty or act of Parliament. Ibid., pars. 822–992, pp. 42–50.

page 47 note 1 See Appendix III, No. 1; and see note 1, p. 42.

page 47 note 2 (2d ed, 1876), §§210–246, pp. 90–127. See Appendix IV, No. 1. A “Draft” of these Outlines was printed in 1872, “intended for suggestion” and “to undergo careful and thorough revision,” as declared in the Preface.

page 47 note 3 8 Annuaire de l’Institut de Droit International (1885–86), p. 129 et seq.; Appendix IV, No. 2.

page 47 note 4 11 ibid. (1889–92), p. 172 et seq.

page 47 note 5 13 ibid. (1894–95), p. 333 et seq.

page 47 note 6 See Appendix III, No. 2.

page 47 note 7 Scott, The International Conferences of American States (1931), pp. 83–88; Appendix III, No. 2.

page 47 note 8 American Journal of International Law, Supplement, Vol. 2 (1908), pp. 243–251.

page 47 note 9 Appendix III, No. 4.

page 47 note 10 Appendix IV, No. 3.

page 47 note 11 2 Hudson, International Legislation, pp. 955–960; Conference on Central American Affairs (Washington, 1923), p. 354; 3 Revista de Derecho International (1923), p. 131. This has been replaced by a new convention of 1934 (see Appendix III, No. 7).

page 47 note 12 International Law Association, Rapport sur la réunion de Vienne de 1926, p. 441.

page 47 note 13 American Journal of International Law, Special Supplement, Vol. 22 (1928), p. 314.

page 48 note 1 4 Hudson. International Legislation, pp. 2330–2335. See Appendix III, No. 5.

page 48 note 2 Report of the 35th Conference (1928), pp. 324–329; 14 Transactions of the Grotius Society (1929), pp. 108–112. See Appendix IV, No. 5.

page 48 note 3 Recueil de Documents en Matière Pénale et Pénitentiaire, I, p. 478. See Appendix IV, No. 6.

page 48 note 4 See Appendix III, No. 6.

page 48 note 5 Ibid., No. 7.

page 48 note 6 Ibid., No. 2.

page 48 note 7 Ibid., No. 4.

page 48 note 8 Ibid., No. 7.

page 48 note 9 Ibid., No. 5. As to ratification see Editor’s Note in 4 Hudson, International Legislation, p. 2279.

page 48 note 10 Appendix III, No. 6.

page 48 note 11 League of Nations Document, C. 51. M. 28. 1926. V; American Journal of International Law, Special Supplement, Vol. 20 (1926), pp. 243–251.

page 50 note 1 “What is required nowadays, and what will certainly be realized in the near future, is a universal treaty of extradition—one single treaty to which all the civilized States become parties.” (Oppenheim, International Law (McNair, 4th ed., 1928), I, §328, p. 567.)

“Le Congrès considère comme hautement désirable, pour assurer une répression efficace de la criminalité l’unification internationale des règies sur l’extradition.” (Resolution adopted by International Congress of Comparative Law, The Hague, 1932.)

page 51 note 1 See, for typical provisions, Appendix V, Nos. 3, 5, 6 and 8.