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IVISIONAL COURT
IN RE CASTIONI
[1891] 1 Q.B. 149
COUNSEL: Sir Charles Russell, Q.C. (J. P. Grain and Eldridge, with him), for
the prisoner.
The Attorney-General (Sir Richard Webster, Q.C.) (R. S. Wrightwith him), for
the Crown, and the Solicitor-General (Sir Edward Clarke, Q.C.), and Robert
Woodfall, for the Federal Government of the Republic of Switzerland.
SOLICITORS: Solicitor for the Crown and for the Swiss Government: The
Solicitor to the Treasury.
Solicitor for the prisoner: W. H. Phelan.
JUDGES: DENMAN, HAWKINS and STEPHEN, JJ.
DATES: 1890 Nov. 10, 11.
Criminal Law -- Extradition -- Offence of a Political Character --
Jurisdiction to review Decision of Magistrate -- Extradition Act, 1870 (33 &
34 Vict. c. 52), s. 3 (1).
By the Extradition Act, 1870 (33 & 34 Vict. c. 52), s. 3 (1), "A fugitive
criminal shall not be surrendered if the offence in respect of which his
surrender is demanded is one of a political character."
Held, that the true meaning of this expression is that suggested in Sir
James Stephen's History of the Criminal Law, vol. ii., p. 71, and therefore
that to bring an offence within the meaning of the words "of a political
character," it must be incidental to and form part of political
disturbances.
A number of the citizens of one of the cantons of the Swiss Republic, being
dissatisfied with the administration of the government of the canton, rose
against the Government, arrested several members of the Government, seized
the arsenal, from which they provided themselves with arms, attacked, broke
open, and took forcible possession of, the municipal palace, disarmed the
gendarmes, imprisoned some members of the Government, and established a
provisional government. On entering the municipal palace the prisoner, who
had taken an active part in the disturbance throughout, shot with a revolver
and killed a member of the Government. He escaped to England, where he was
arrested and committed for extradition on a charge of murder.
On a motion for habeas corpus:--
Held, that the offence which the prisoner had committed was incidental to
and formed a part of political disturbances, and therefore was an offence of
a political character within the meaning of the statute, and the prisoner
could not be surrendered, but was entitled to be discharged from custody.
The decision of a magistrate, who commits a prisoner for extradition, that
the offence charged is not of a political character, is subject to review by
the Court on an application for habeas corpus.
APPLICATION for habeas corpus.
The motion was made on behalf of Angelo Castioni, for an order nisi calling
upon the Solicitor to the Treasury, Franklin Lushington, Esq., a
metropolitan police magistrate, and the consul-general of Switzerland, as
representative of the Swiss Republic, to shew cause why a writ of habeas
corpus should not issue to bring up the body of Castioni in order that he
might be discharged from custody.
The prisoner Castioni had been arrested in England on the requisition of the
Swiss Government, and brought before the magistrate at the police court at
Bow Street, and by him [*150] committed to prison for the purpose of
extradition, on a charge of wilful murder alleged to have been committed in
Switzerland.
The facts, which were contained in depositions sent from Switzerland, in the
depositions taken before the magistrate at Bow Street, and in affidavits
used on the hearing of the motion, were shortly as follows (1):-
The prisoner was charged with the murder of Luigi Rossi, by shooting him
with a revolver on September 11, 1890, in the town of Bellinzona, in the
canton of Ticino in Switzerland. The deceased, Rossi, was a member of the
State Council of the canton of Ticino, and was about twenty-six years of
age. The prisoner, Castioni, was a citizen of the same canton; he had
resided for seventeen years in England, and arrived at Bellinzona on
September 10, 1890. For some time previous to this date much dissatisfaction
had been felt and expressed by a large number of the inhabitants of Ticino
at the mode in which the political party then in power were conducting the
government of the canton. A request was presented to the Government for a
revision of the constitution of the canton, under art. 15 of the
constitution, which provides that "The constitution of the canton may be
revised wholly or partially .... (b) at the request of 7000 citizens
presented with the legal formalities. In this case the Council shall within
one month submit to the people the question whether or not they wish to
revise the constitution," and a law of May 9, 1877, prescribes the course to
be adopted for the execution of letter (b) of art. 15. The Government having
declined to take a popular vote on the question of the revision of the
constitution, on September 11, 1890, a number of the citizens of Bellinzona,
among whom was Castioni, seized the arsenal of the town, from which they
took rifles and ammunition, disarmed the gendarmes, arrested, and bound or
handcuffed, several persons connected with the Government, and forced them
to march in front of the armed crowd to the municipal palace. Admission to
(1) Another document was before the Court, viz., a message from the Federal
Council of the Republic of Switzerland to the Federal Assembly, after the
disturbances had been put an end to, but was used only as being material to
the question whether the offence charged was an offence of a political
character, and was not accepted as evidence of the facts therein stated (see
the judgment of Denman, J., post, p. 158).
[*151] the palace was demanded in the name of the people, and was refused
by Rossi and another member of the Government, who were in the palace. The
crowd then broke open the outer gate of the palace, and rushed in, pushing
before them the Government officials whom they had arrested and bound;
Castioni, who was armed with a revolver, was among the first to enter. A
second door, which was locked, was broken open, and at this time, or
immediately after, Rossi, who was in the passage, was shot through the body
with a revolver, and died very soon afterwards. Some other shots were fired,
but no one else was injured. Two witnesses, who were present when the shot
was fired, and were called before the magistrate at Bow Street, identified
Castioni as the person who fired the shot. One of the witnesses called for
the prisoner was an advocate named Bruni, who had taken a leading part in
the attack on the municipal palace. In cross-examination he said: "The death
of Rossi was a misfortune, and not necessary for the rising." There was no
evidence that Castioni had any previous knowledge of Rossi. The crowd then
occupied the palace, disarmed the gendarmes who were there, and imprisoned
several members of the Government. A provisional government was appointed,
of which Bruni was a member, and assumed the government of the canton, which
it retained until dispossessed by the armed intervention of the Federal
Government of the Republic.
The magistrate was of opinion that the identification of Castioni was
sufficient, and held upon the evidence that the bar to extradition specified
in s. 3 of the Extradition Act, 1870(1) did not exist, and committed
Castioni to prison.
(1) 33 & 34 Vict. c. 52, s. 3: "The following restrictions shall be observed
with respect to t
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