have already remarked that the doctrine, thus broadly stated, though sanctioned by the writers referred to by the chancellor, is not supported by all the writers of the same school and period; and the opposite opinion seems now to prevail generally among the publicists of more modern times. Mr. Wheaton, the latest writer in English on international law, lays down what I have no doubt is the true principle in the following terms:-"No sovereign state is bound, unless by special compact, to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country, upon the demand of a foreign state, or its officers of justice. The extradition of persons charged with or convicted of criminal offences affecting the general peace and security of society is, however, voluntarily practised by certain states as a matter of general convenience and comity." (Wheaton's international law, p. 111.)

I have been able to examine but few of the modern works on public law, in which this subject is treated incidentally; and I have seen none of the many publications (principally in Germany) of which it is the special subject. But from those which I have seen, and from notices of others, I have no doubt that the doctrine of Mr. Wheaton is now the acknowledged doctrine of the publicists of modern continental Europe.

The following is extracted from a short review of a work on extradition, in the New Archives of criminal law, vol. 13, for 1833, p. 145, and following: "If we examine the opinions which prevail in Europe, on the subject of the delivery of persons charged with crimes, we shall readily perceive that there is no uniformity in them. Individual states conclude treaties with each other, in regard to extradition, in which the crimes on account of which they are willing to deliver up offenders are particularly specified; and the existence of these treaties leads to the conclusion, argumento ab con

trario, that in the absence of a compact to that effect, there is no obligation upon any state to deliver up offenders fleeing to it from other states, and that there can be no extradition for any other crimes than those which are mentioned in the treaty. The latest writers on public law also take notice of this variety of practice, as for example, Pinheiro-Ferreira, (formerly minister in Portugal,) in his Cours de droit publique interne et externe, (Paris, 1834, vol. 2, p. 24-34) and an excellent German writer in the Minerva for October, 1831, (p. 102,) in which the well known case of Gallotti is examined." "It is worthy of remark, too, that according to the most recent authority (Le ministere public en France, par Ortolan et Ledeau, Paris, 1831, vol. 2, p. 231,) extradition is no longer allowed in France, in any case."

I have not been able to obtain either of the works referred to in the preceding extract; but I have seen other writings of one of the writers (Pinheiro-Ferreira,) in which the statement of his opinion is corroborated. In an article, published in the Revue Etrangere et Française, vol. 1, p. 74, this author makes the following remarks:

"From what has been said, it is easy to conclude, that extradition cannot take place in any case, except where the party is convicted of having voluntarily contracted an obligation of personal service, from which it is not possible for him to buy himself free. Such, for example, would be the case of a mariner, who, having engaged himself for the whole voyage, should stop at the port of discharge."

The same author, in his recent edition of Vattel, has the following note to book 1, § 233.

"As to what he (Vattel) adds on the subject of extradition, we cannot accord it in any case, for the following

reasons.

"Extradition cannot take place but in virtue of a judicial decree, or of an order of the government, independently of the judicial administration of the country. As to the

judicial decree, it must be admitted, either that the refugee has been found guilty, or that he has not been so. If he has been convicted, the judge can only inflict upon him the punishments decreed by the penal code, the execution of which belongs to the government of the country and not to that of the condemned. The latter ought, therefore, to suffer the punishment in the country to the laws of which he has subjected himself.

"As to the other hypothesis, that the government ought to deliver up the offender, without waiting for the decision of the tribunals of the country, it is a doctrine which cannot be reconciled with the principles of constitutional law, which guarantees to every one the full enjoyment of his rights, so long as he is not divested of them by a judicial decree."

A French writer on criminal law, Legraverend, Traité de la Legislation Criminelle, tom. 1, p. 109) considers extradition as a matter of national comity only, "sauf la decision des gouvernemens."

If, as I think has been shown, extradition is a matter of national comity, and not of strict right, it becomes a question of exceeding importance, to decide upon whom rests the responsibility and the duty of exercising this comity, whenever a case arises for its exercise. Whatever may be the decision of this question in governments more or less absolute in their character, I think there can be little doubt in relation to it in strictly limited governments like our own. Under our forms, no functionary of government has any power but that which is, in some mode or other, expressly delegated to him; and this general proposition, though operating differently in the two cases, may be equally affirmed of both the state governments and the government of the union. Is the power to exercise this international comity now conferred upon any department of either the national or state governments? I think clearly not. How

then is it to be exercised? I answer, that, in the absence of all statute regulation, by which the power is delegated, it seems to me very clear, it can only be exercised by congress, or by the legislature of a state, according as jurisdiction of a particular case belongs to the one or the other.

The conclusion to which I have been led is,-that extradition is a matter of national comity, and not of national duty; that a nation may consequently refuse to grant it, without affording just cause of war;-and that in this country, it is only for the legislature, as the sovereign power, to exercise it, either by means of some general law regulating the subject, or, where there is no law, by acting directly in each particular case that occurs. In coming to this conclusion, I have been governed solely by the weight of modern authority, unaided by speculative reasoning, or considerations of public policy, (which would have extended this letter to an inordinate length,) though I am persuaded that these grounds would be found equally conclusive.

ART. VII.-A SKETCH OF THE VARIOUS THEORIES CONCERNING THE RIGHTFUL FOUNDATION AND THE OBJECT OF PUNISHMENT.

[For the materials from which we have drawn the following article, we are chiefly indebted to the first volume of the theory of the (French) penal code, by Messrs. Chauveau and Helie, and an article by Mr. Pistor, in the second volume of Mr. Wolowski's Review.]

It is not improbable, that all systems of criminal law had their origin in the instinctive feeling of revenge. In a rude and uncivilized state of society, when one had committed an aggression upon another, the injured person forth with revenged himself in the best way he could; but, if, in revenging the injury committed on himself, he exceeded the limits of what

other members of the society regarded as a just vengeance, he was in his turn subjected to punishment. When a considerable number of offences of the same nature had been committed, and had been punished by the injured person or some one on his behalf, in a similar manner, this succession of offences and punishments became the foundation of a rule, which in due time received the form of a law. The sovereign power, also, proceeding upon the same instinctive feeling, threatened particular acts which it desired to prevent, with analogous punishments; and, thus, from these two sources, was gradually formed, in process of time, and with the progress of civilization, a body of criminal laws.

Penal systems were consequently originally formed without much regard to the abstract right or the proper end of punishment. Certain injurious acts were to be prevented; and the readiest means which presented themselves were adopted for that purpose. With the progress of civilization, however, punishments, which were once in harmony with men's feelings, came to be regarded as barbarous. The subjects of the abstract right, and of the end of punishment, began then to attract attention.

About the middle of the eighteenth century, Beccaria advanced the doctrine, that all chastisement is unjust, when it is not necessary to the preservation of the public liberty. The foundation of the right of punishment, according to Beccaria, is the right of society to defend itself. He supposes an original compact, by which men, previously independent and isolated, became united in society, and sacrificed a portion of their liberty, in order to enjoy the residue in greater security. The sum of all these portions forms the power of the nation, deposited in the hands of the sovereign. Hence, it follows, that every exercise of the right to punish, which is not absolutely necessary to the defence of society, is an abuse and not a right.

This system of defence has been followed by the French