THE IMPRISONMENT OF DR. CORNELIUS HERZ. THE imprisonment of Dr. Cornelius Herz deserves some attention for more reasons than one. On grounds of humanity, there is much to arrest attention in this strange spectacle, unusual in England, of a man dangerously ill imprisoned in his bed room for nearly three years, without trial or opportunity of defense. But apart from the hardships of the individual, there is another aspect of the situation deserving to be re garded. It is of course well known that the whole law and practice of extradition is the young est of the brood of Justice. But one result of this, in connection with the Herz case, appears to escape observation. It is simply that every case which in any important par ticular leaves the path of mere routine, is bound to be a leading case, and set the fashion. The vast majority of the cases, with the exception of a few dozen, have arisen within the last twenty-five years. 1870 is practically the beginning of the practice. If the present deadlock be not mended in some way, it will be the settled rule in Eng land that sick men, whom it is impossible to bring to trial, are to be kept under lock and key at the good pleasure of a foreign government. Knowing what we know of foreign governments less civilized than the French, it can hardly be said that this pros pect is reassuring. The notions of foreign princes and potentates on the point of lib erty of the mere private person are not al ways suited to English air. The present question has arisen on the Franco-British Treaty of Extradition, but it may arise in some other case under the Treaty with Germany, with Russia, with any of the Great Powers. Its importance is therefore perfectly general, as all extradition treaties are formed on the same lines. The
British Government agrees with the Govern ment of some other state (usually civilized, but sometimes so by stretch of courtesy only) for the mutual surrender of criminals, or rather of accused persons, on requisition to be made in a prescribed manner. On receiving this foreign requisition, the British Government is empowered by statute to delegate the holding of a preliminary in quiry to a special magistrate : for England, a magistrate sitting at the Police Court in Bow Street. If the magistrate, on holding this inquiry, should be satisfied that a prima facie case has been made out against the accused — such a case as would warrant him in sending the accused for trial before a British jury — he is to order his surrender. But, it may be asked, what is to prevent a foreign Government, distinguished by its tyrannical rule, from utilizing this procedure in order to get into its power its political opponents? The answer is that the Extra dition Acts of Parliament which prescribe the procedure to be adopted by British courts, and the various extradition treaties, all contain provision to prevent extradition being misused in this way. Acts and treaties provide that political offenders are not to be surrendered, even though accused of ordi nary crimes, if the magistrate who holds the preliminary investigation, or the Secretary of State for Foreign Affairs, is satisfied that the real object of the foreign Government is to punish for a political offense. Again, the Secretary of State has a controlling power over the whole process of surrender, and need not allow extradition in any case in which he thinks it should not be granted. These rules have worked well enough in most cases, though, of course, failures on the part of the authorities on this side of the Channel to detect, or to hold proved, the
