So that Crimes Would Not Go Unpunished: Extradition Treaties in the 18th Century
By: Randall Lesaffer
In memory of Georges Macours (1939–2012), Professor of legal history, KU Leuven
On 27 March 1759, officers of the King of France and the Duke of Wurttemberg signed an extradition agreement. The compact was limited in time to five years and was renewed on 3 December 1765 for another five-year period (Treaty of Strasbourg, 43 CTS 243).
Article 1 of the agreement stipulated that the parties would, on the basis of reciprocity, extradite to one another ‘brigands, misfeasors, thieves, arsonists, murderers, assassins, vagabonds, as well as all cavaliers, foot soldiers, dragoons and hussars, or all other [soldiers] in the pay’ of either of the two princes. Extradition would occur at simple request but was, under the text of the treaty, limited to those criminals and deserters found in the County of Montbéliard—which belonged to the duke—or in the Franche-Comté and Alsace—which belonged to the king. The rest of the treaty text concerned the modalities of extradition, rather than a specification of the kinds of crimes that were covered by the treaty, the conditions under which extradition would take place, or possible exemptions.
The treaty is just one example among many of extradition treaties concluded between European powers during the 18th and early 19th centuries. Georg-Friedrich von Martens (1765–1821) listed close to a hundred such treaties in his collection of treaties for the period between 1718 and 1830. The practice of extradition of common criminals between European states, and its regulation in bilateral treaties, was a function of the emergence of the modern state, with its concern to vest its exclusive authority and jurisdiction over its territories and subjects. Whereas this was largely an internal matter, the 18th and early 19th centuries also witnessed forms of cooperation whereby governments aided one another to strengthen their control over their respective territories. Border treaties which allowed states to clarify the territorial extent of their jurisdiction and rationalize its physical management were one example thereof. Extradition treaties were another.
Although there are some rare examples of agreements on the extradition of common criminals from the Middle Ages, the practice only really emerged during the 18th century. In the 16th and 17th centuries, there are some examples of negotiations and agreements about the expulsion or extradition of subjects of a treaty partner who had rebelled, or of traitors or people who had otherwise committed political crimes. The Peace of Breda between the British monarchy and the Dutch Republic of 31 July 1667 was quite elaborate with respect to the obligation for the treaty partners to expel rebels (Article 16, 10 CTS 231). A more direct predecessor of 18th-century extradition treaties are cartels, whereby states agreed to extradite deserters.
Among these, the Treaty of Quiévrain of 1 April 1718 (30 CTS 285) served as a model for later extradition treaties, for both common criminals and deserters. Several stipulations with regard to the costs of detaining and turning over the miscreants as well as the details of the extradition arrangements from this treaty resurfaced in the 1759/1765 treaty between France and Wurttemberg.
A key agreement on extradition, which spanned the gap between treaties on deserters and criminals, was the one reached between the government of the Austrian Netherlands in Brussels and the French royal government. In the summer of 1736 the governor-general of the Austrian Netherlands—roughly present-day Belgium and Luxembourg—and the French king both issued a declaration promising to extradite common criminals on simple request, on the basis of an expectation of reciprocity. The declarations had come about after a concrete request for extradition from the bailiff at Ypres (for the text and the case, see Macours, Ne crimina impunita maneant). The declarations were little more than a general command for extradition, and did nothing to spell out the conditions or exemptions. They clearly referred to common crimes, but they neither offered an exhaustive list of the offenses that were covered, nor did they enumerate possible exceptions. The declarations, like the cartels on desertion, did not demand that extradition requests be made at the government or diplomatic level. Instead they commanded all state officials to act upon the request of the other state’s officials—in practice thus referring such requests to local prosecutors and other court officials.
Although the declarations of 1736 did not take the form of a treaty, the two declarations were clearly dependent on one another as they emphasized reciprocity. The history of their genesis also indicates that they were the result of a negotiated process and an understanding of mutual obligation. The two major provisions of these declarations—reciprocity and extradition upon request by the other state’s local officials—became the backbone of treaties of the later 18th century. France was the most active power in negotiating and signing such treaties in the second half of the century and the early decades of the following one. Through its endeavours, a practice which was ultimately based on the precedent of the 1718 treaty and the 1736 declarations with the Austrian Netherlands spread much more widely.
Two major changes occurred in the early 19th century, which worked their way into standard European and international practice. One was the express exemption for political crimes. The reluctance to extradite political enemies of another state, which had been one of the more common occurrences of extradition, or expulsion, in the Early Modern Age, was a consequence of the French Revolution. Such exemptions became quite common, however, in the period of the Restoration (e.g., Treaty of Brussels of 22 November 1834 between Belgium and France, Article 5, 84 CTS 457). The other major change concerned the rule of speciality, whereby a person could only be prosecuted and convicted for the crimes for which extradition had been requested. By this time, treaties commonly also contained an exhaustive list of crimes to which they were to be applied (e.g., Treaty of Dresden of 28 April 1850 between France and Saxony, Articles 2 and 8, 104 CTS 69).
Albert Billot, Traité d’extradition (Paris: Plon, 1874).
Christopher L. Blakesley, ‘The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History’, Boston College International and Comparative Law Review 4 (1981), 39–60.
Julius Hopf (ed.), Table générale du Recueil des Traités de G.F. de Martens et de des continuateurs 1474–1874 (2 vols., Göttingen: Dieterich, 1875–1876).
Georges Macours, Ne crimina impunita maneant. De 18e-eeuwse Frans-Zuidnederlandse uitleveringspraktijk (Standen en Landen vol. 100; Kortrijk: UGA, 1996).
Paul O’Higgins, ‘History of Extradition in British Practice, 1174–1794’, The Indian Yearbook of International Affairs 78 (1964), 78–115.
J.H.W. Verzijl, International Law in Historical Perspective, vol. 5 (Leiden: Sijthoff, 1972), 269–401.