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The Green Bag

tionary leaders. This was admitted in the testimony of Theodore Kinze, the husband of one of the persons con demned and executed by the revolu tionists, and by Christof Leshinsky, the son of the other two. At the time of the killing, the victims were told that they were being executed as spies. Whether the revolutionary council had before it sufficient evidence to warrant the con viction of these persons as spies, how ever much it may affect their moral responsibility, does not affect their legal liability. They acted as members of a military court and as such cannot be held criminally liable for errors of judg ment. If the killing of these three per sons in pursuance of a sentence of the revolutionary council is a crime and not a political offense, it would be hard to select any act involving force and performed by revolutionists rather than by representatives of the regular govern ment which would be a political offense and not a crime. As for the arson of the Leshinsky dwelling and the robbery of T. A. Kinze, from whom a watch, some gold ornaments and thirty rubles were taken, the arson of the dwelling was the usual form of punishment meted out by the governmental authorities to the revolu tionists during the "punitive expedi tion," and the equally usual form of retaliation by the revolutionists; and the robbery need not be considered in connection with the extradition of Rudowitz, as no provision was made for it in the sentence voted by him, and there is absolutely no testimony connecting him with it. Throughout its national history the United States has adhered to the policy of not extraditing for political crimes, and the term "political crime' ' is of almost exactly the same age as our national government. So firmly rooted has this

practice become that even a century ago in some of our extradition treaties it had not been thought necessary to insert the clause excepting political offenders from the operation of the treaty. This is the case in our treaties of 1794 and 1842 with Great Britain. In commenting on this fact Mr. Fish, the Secretary of State, in a letter to Mr. Hoffman, of May 22, 1876, says: "The public sentiment of both countries made it unnecessary. Between the United States and Great Britain, it was not supposed, on either side, that guaran tees were required of each other against a thing inherently impossible, any more than by the laws of Solon was a punish ment deemed necessary against the crime of parricide, which was beyond the possibility of contemplation." (Foreign Rel. 1876, p. 22.) Nor has the tendency been, either in this country or in England, to construe the term "political crime" strictly, but rather to permit it to include some acts which, viewed from the standpoint of a person not engaged in the revolution, would seem not to be necessary or appropriate to attaining the end sought. Yet, if viewed from the point of view of the actors they could reasonably have been considered necessary or ap propriate, they are considered as "politi cal offenses" rather than ordinary crimes. As the Court of Queen's Bench said in the Castioni case: "Looking at it as a question of fact, I have come to the conclusion that at the time at which the shot was fired he acted in the unlaw ful uprising to which he was at that time a party, and an active party—a person who had been doing active work from a very much earlier period, and in which he was still actively engaged." In this case, Switzerland sought from the British government the extradition of Castioni for the murder of one Rossi,