§ Order for Second Reading read.
LORD STANLEYSir, I rise to move the second reading of the Bill for the amendment of the Act of Extradition on which our Treaty with France is founded. In doing so a few words of explanation may be necessary—not so much for the benefit of those who have read the Bill and the papers on which it is founded, as for the information of those—and they seem to be not a few in number—who, having done neither of those things, have, nevertheless, formed a very decided opinion upon the question, and who, as is natural under such circumstances, labour under very considerable misapprehension as to its extent and purport. Now, I do not conceive that it is necessary to defend the general principles upon which the Extradition Treaty Act of 1843 is based. The Bill that gave sanction to that treaty was agreed to after full inquiry by both Houses of Parliament. It has been in existence for twenty-three years, and during that time no attempt has been made to reverse it. The principle upon which it rests has been accepted by civilized nations generally; and that principle appears to be not only expedient in practice, but on 2005 principle defensible and even unanswerable. In old days, when communication between different countries was slow and infrequent, it mattered comparatively little that it was theoretically possible for a man who had violated the law in his own country to escape and find refuge in a neighbouring State; for, although theoretically the possibility existed, his chance of getting there was small, and his chance of living when there probably still smaller. In our day, however, of increased and of daily increasing national intercourse, when communications constantly become more rapid, and facilities for escape proportionately increase, this question assumes a far more serious importance. It would be not merely inconvenient, but absolutely indecent and a scandal to our civilization, if it were possible that a man known to have committed a murder in London, and having by good fortune got six hours' start of the police, should be able to walk about the streets of Boulogne or Calais, and remain there during the rest of his life, absolutely secure from punishment of every kind, admitting his offence, and perhaps glorying in it. Now, I do not think it possible to attack the principle upon which Extradition Treaties are based without laying down this doctrine, which I think the House would shrink from sanctioning—that the judicial arrangements of that country with which a treaty is proposed are so bad and its Government so incapable of doing justice that it could not be trusted to try its own subjects, and that it would be far better that the offenders against the law of that country should escape punishment altogether than that they should undergo punishment according to that law. For my part, I have accepted the general principle of these treaties, as sanctioned by the law of this and other countries, and I wish to confine myself to the alterations now proposed by this Bill to be made in the existing law. But before I say what those alterations are, let me say what they are not. I have heard that there is an impression in some quarters that, however small this measure may be, it is only intended as a means of bringing in a much larger measure, and of considerably extending the catalogue of offences included in the Extradition Treaty with France. I say distinctly that this Bill has no such object or intention. The alteration it proposes is of the slightest kind, and its object is to satisfy a point of honour on the part of the Judges of that 2006 country with which the treaty is made, and with respect to which it is, I think, impossible not to feel that their objection to the present state of the law is reasonable in its character. As this is a matter of legal procedure, I hope the House will allow me to read a brief statement of a case given by Sir Thomas Henry, the well-known magistrate, in his letter of the 20th of April last to Lord Clarendon, and which contains the entire gist of the question. Sir Thomas Henry says—
The difficulty experienced in giving effect to the Treaty with France arises from some words in the second section of the Extradition Act, 7 Vict. c. 75. The object of that section was to obviate the necessity of sending witnesses from one country to the other, and with that view it enacted that copies of the depositions upon which the French warrant of arrest was granted may be received in evidence if 'certified under the hand of the person issuing such warrant and attested upon the oath of the party producing them to be true copies of the original depositions.' The words in italics have given rise to the difficulty which I will shortly explain; when the French Government applies for the extradition of an accused fugitive the practice has been to transmit a warrant of arrest, and copies of depositions certified under the hand and seal of the Juge d'Instruction who issued the warrant, and verified by the signature and seal of the Minister of Justice; requisition is thereupon made by the French Ambassador to one of Her Majesty's Secretaries of State, who directs that application shall be made to the chief magistrate of this court to issue his warrant for the apprehension of the accused. Before that can be done it is absolutely necessary that the 'person producing the copies should attest upon oath' that they are true copies; he cannot so attest unless he has compared them with the original depositions, and to do that it becomes necessary that he should apply to the Judge in France who signed the certificate, and ask permission to see the original depositions, so that he may compare, and be able to attest, that the copies are true copies, or, in other words, that he may be able to swear that the Judge had certified truly. At the interview which Lord Cowley and I had with the Minister of Justice (M. Baroche), he said that the French Judges considered it an indignity that their certificates should be treated as unworthy of any confidence, and that a person, usually a common policeman, should be sent into their chambers requiring to see the original depositions in order to ascertain whether the Judges had given true certificates. He stated that France had fifty-three Extradition Treaties, and that all other countries were perfectly satisfied with the official certificates which authenticated their warrants and depositions. He remarked that all criminal proceedings in France were conducted by the State, under the supervision of the Attorney General and the Minister of Justice, and that it was not to be supposed that they would send false copies of depositions.On this point, also, I have the statement made by the present Lord Chancellor in 2007 another place, and in the presence of other learned Lords, who, if there had been any inaccuracy in his statement, would doubtless have corrected it—And it is most extraordinary that this should be required, because, under the law with regard to proving documents from foreign countries in our Courts of Justice, any judicial proceedings, or any documents emanating from a Court of Justice, can be proved by the production of copies of those documents purporting to be sealed with the seal of the Court, or with the signature of the Judge of the Court, accompanied by a statement to the effect that the Court had no seal, without any proof whatever of the authenticity of the signature or of the seal, or of the judicial character of the person who affixed the seal or the signature, or of the truth of the statements contained in the documents. If, therefore, those documents were produced in a Court of Law, verified in the way I have stated, there is no doubt whatever that they would be perfectly good evidence, and there can be no reason why a difference should be made in the mode of proof with regard to the transmission of documents from France under the Treaty of Extradition."—[3 Hansard, clxxxiv. 1056.]Now, the only change introduced by the present Bill is to make them evidence under the Extradition Treaty. As to the objection that these papers may be used for political purposes, my answer is that we leave the law in this respect precisely as it stood before, and if the House discusses that question it will be raising what would be really a false issue. It may be perfectly right and fair that the House should discuss the general policy of having any Extradition Treaty whatever, and that the House should express its opinion on that question. But if the principle of Extradition Treaties be admitted, it seems to me absurd to admit the principle on the one hand, and on the other to render it nugatory in practice by refusing to amend what is simply a technical flaw. The offences provided for in the Extradition Act are only four—murder, attempt to murder, fraudulent bankruptcy, and forgery. Of these offences there are only two which seem likely to have a political bearing—they are the first two—murder, and attempt to murder. I see a Notice has been given that when the Bill goes into Committee a clause will be proposed, the purport of which is to exclude all offences which are considered to be of a political character. I do not say that on principle I should have any objection to that, provided you define what is to be treated as an offence of a political character. I take it that in a rough and popular way it 2008 might be possible to do that. For instance, if a man were killed in a riot, or in an attempt to excite a tumult or popular insurrection, that probably would be regarded as a political offence. But a difficulty would arise in cases where you have to deal with attempts at assassination. It does seem to me that while on the one hand we desire to retain inviolate the right of exemption from arrest for political offences it is monstrous to say, on the other hand, that if any private person is assassinated in the streets of Paris, for example, and the murderer escapes to England, he may be punished; but that if the person so assassinated is invested with any political character then the offence becomes a political offence, and the law of England declares that he shall not be given up to justice. This position appears to me to be utterly untenable. There is, I apprehend, a discretionary power given to the Secretary of State as to the application of the Act, and all I can say on this point is that if any hon. Gentleman can succeed in establishing a distinction between the case of a purely political offence and an offence against morality, I shall be willing to consider the proposal to insert a clause to meet such a case. I think it will be difficult to draw such a distinction, but it is a matter which we may consider in Committee. I have now stated to the House the object of this Bill and the circumstances which have led to its proposal. I may add that the present Government has taken up the question, believing the Bill to be thoroughly sound and its principles right and just. Nevertheless, we are not alone responsible for this measure. It came down to us from our predecessors in office, and I confidently rely that we shall have their co-operation in our efforts to give it legislative effect.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Lord Stanley.)
MR. M'CULLAGH TORRENSsaid, it now became his duty to move the Amendment of which he had given notice—namely, that the Bill be read a second time that day three months. It was not either his fault, or the fault of those who acted with him, that so important a measure should come on for consideration at nearly the last stage of the Session. Negotiations had been pending since the beginning of the year, as the papers disclosed, for which he had moved, and for 2009 whose production they were, he thought, much indebted to the noble Lord (Lord Stanley). No doubt there were good reasons why the Bill was kept back from Parliament until the last days of June, but whenever brought forward it was sure to raise a great and a grave question of principle. He repudiated the pettifogging interpretation that this was a mere Bill to change the mode of subordinate procedure, believing that it involved a question of national policy and the abrogation of one of their oldest and most cherished traditions. The noble Lord, in the first part of his speech, threw out an imputation that those who were about to oppose this Bill desired to abolish altogether the principle in our law of extradition, pointedly insinuating that they would thereby allow malefactors to find refuge in this country. He did not know any man in that House who entertained that opinion. What he contended was, that they should leave the law of the land where Sir Robert Peel's Administration had left it in 1843. Until that year the principle of extradition lay dormant. It had been embodied, indeed, in one of the Articles of the Treaty of Amiens, but like other provisions of that abortive compact, it had been swept away on the renewal of the war. But in 1843, Lord Aberdeen being Minister for Foreign Affairs, Lord Lyndhurst Chancellor, and Sir Robert Peel chief Adviser of the Crown, thought it was desirable to make a treaty with France, and also one with the United States, giving mutual rights of extradition within certain bounds; those treaties were only sanctioned by Parliament because the Government undertook to provide proper constitutional guards against any infraction of our laws. There were two Acts passed in 1843, under which no man could be delivered up at the requisition of a foreign Government, unless such a case should be made before a magistrate in England as would justify that magistrate in committing the accused if the offence were committed here. That was the principle of their law. They asked now for no more, and they should be content with no less. They charged the Government with overlooking the cardinal distinction set forth in the statutes of this realm, and not objected to by the United States of America, but objected to by France for a reason which he should presently state. In his correspondence with Lord Clarendon, the Prince de la Tour d'Auvergne said that what the French Government 2010 wanted was not a modification of the procedure at Bow Street—not a trumpery difference as to the mode of taking evidence—but that a French warrant should run in Middlesex, and that when a man bad been convicted in France, even in his absence we should give him up. In point of fact, that the magistrates should cease to be independent judges, and that they should become agents of the French police. Lord Clarendon, in his reply, very properly stated that no Government in this country would venture to come to Parliament and ask for such concessions; but in his (Mr. Torrens') opinion, and in the judgment of wiser men, the Bill they were asked to sanction was framed in a manner which practically yielded the first and worst of these concessions. Nothing was further from the wish and intention of those who opposed this Bill than to throw out insinuations calculated to create distrust and enmity between the Governments of France and England. They on the Opposition side of the House had always consistently pleaded for amity with France, and had always endeavoured to convince the people of this country that their best interest was to keep well with the French people. It would be to him a matter of great regret that they could not make the changes which would put the two Governments at one with each other; but he could not acquiesce in an Act by which it was sought to get rid of all viva voce testimony, and to hand over foreign offenders upon nothing but documentary evidence. In the Extradition Treaty debate, which took place in the House of Lords in 1852, Lord Aberdeen charged the French Government distinctly with having abdicated the duty the Convention laid upon them, and that the reason why it had failed was that the French Government did not choose to send over to this country the witnesses which by the treaty they undertook to send. But now they were told, as a supplementary reason why they did not send, that it was beneath their dignity. Were they to be told that what was not unworthy of the dignity of the Queen of England was to be regarded as unworthy the dignity of the Emperor of the French? Now let the House observe what Napoleon III. bade his envoy demand in 1852, he instructed his Ambassador to demand now. His aim and his policy had undergone no change. The first Administration of Lord Derby had offered to obtain for him the con- 2011 cession he then and still required, and the noble Earl who signed the Convention for that purpose in 1852 sat in the present Cabinet as Lord Privy Seal. Was it surprising, then, that those who with him (Mr. Torrens) viewed such changes in the integrity and independence of our law as fraught with danger and dishonour, should look with something more than jealousy on a Bill which they were told would satisfy the Ruler of France? Lord Clarendon had stated, in a letter to Lord Cowley, of the 18th January, that the demands of the French Government were specifically, first, that persons should be given up without inquiry against whom the sentence of a French court should be produced; and secondly, that accused persons should be given up simply on the production of a mandat d'arret, without any further evidence of criminality whatever. It was clear that if we made these concessions no Frenchman in England would be safe from the possibility of arrest. It had been said by the French Government that they had obtained prisoners from the United States on a mandat d'arret without proof. When he heard that statement he was startled. He said that if France could prove that she made out a strong case against England, and he wrote to the American Minister in Paris for information upon that point. Mr. Bigelow replied with a crushing negative to the question. He said—
To procure a warrant of extradition under any of our treaties it is necessary to produce to the officer before whom the accused is arraigned not only the mandat d'arret, but certified copies of the depositions upon which the warrant has been granted. These copies must be attested by the oath (parole) of the person presenting them to be true copies of such originals.He said no magistrate in the United States would deliver up a prisoner without a certified copy of a warrant, the depositions on which it was founded, and the production of witnesses, those witnesses being subject to cross-examination. American law was substantially our law; American common law was our common law; American statutes were, mutatis mutandis, our statutes. Mr. Bigelow further said that an American magistrate must have that kind of evidence which satisfied his mind that the offence had been committed which would justify him in committing his own countrymen for trial, or he would not give up the prisoner. Well he (Mr. Torrens) said, stick to that and he would be content. But that principle was entirely at right angles 2012 with the principle of this Bill. The principle of this Bill was to get rid of viva voce evidence, and to substitute a certificate of a minister of justice. It proposed to give to France, a country governed by institutions unlike our own, a right to seize the accused on the production of a warrant and depositions. The difference was not a difference of degree; it was a difference of principle. The only question to be asked of the French witness was as to the seal and signature of the French functionary and the identity of the accused. They would never persuade the people of England that when they made themselves the jackals of a foreign despotism they were dealing with the helpless foreigners they gave up in the same way as they would deal with Englishmen. He would ask every hon. Gentleman who listened to him to fancy himself in the magisterial chair, and that some agent from the French embassy asked him to give up a man they wanted, the only evidence produced being a paper professing to bear a certain seal or signature. Would that hon. Gentleman, on such evidence, consent to give up a person so accused? But this was not all. Depositions in English law was a plural term. In France it was a noun of multitude. A mandat d'arret might be sent over for complicity in an attempt at murder. But who could say what there was behind? The acte d' accusation was something like an indictment. But it was more. The depositions embodied in it contained a history of the man's life as to what he had said and done, and as to what his associates and confidants had said and done with his full or partial cognizance. It was the brief, out of which, under the penal code of France, the Judge was to break down the accused by a system of interrogation amounting to mental torture; that was the ordeal to which exiles who found an asylum in England would be consigned by this Bill. The principle of English law was that innocence was to be assumed until the accused was proved to be guilty, but the avowed principle of the French penal code was that an accused person was deemed guilty until he proved his innocence. The French refused to prove or verify either the deposition or the acte d' accusation before the delivery of the alleged criminal, and this Bill was to sanction that procedure. It was intended as a peace-offering, and it was hoped that the French Government would be satisfied 2013 with this change in our jurisprudence, it not being convenient for us at present to go further. But national subserviency was a fathomless pit; look over its brink and you lost the cool sense of vision; go three or four steps down, and you know not how far you may fall. He scorned the imputation of wishing to breed feelings of jealousy or enmity between the two countries, but as he did not wish that we should earn the reproach of being accomplices in crime after the fact, so neither did he wish that we should bear the blame of becoming accomplices in oppression before the fact. When Lord Malmesbury's Bill for a like object came before the House of Lords in 1852, Lord Campbell vetoed it in the outset, and said he never would consent to it. It had been, from the earliest times, the boast of our jurisprudence that a man could only be committed for trial in open court, and after being confronted with his accuser. We waived the full strictness of that maxim in 1843 in our anxiety to please the French Government, but now it was proposed to give up the rest, and not even to allow the deposition to be confirmed by the production of a witness. It was proposed to give up much and to get nothing—a second step in the downward path of concession, though in all probability before many years had passed further and greater concessions would be demanded. He did not believe the noble Lord could give them any assurance that they would be asked to concede nothing further, and even if he could, that would not silence his (Mr. Torrens') opposition to this measure. Why were we to assent now to a concession too like that which the House of Lords had rejected as unconstitutional in 1852? What was the practical difference between this Bill and that which was rejected by the Lords as unconstitutional? The hon. Member pointed out the distinction, which was too often overlooked between authentication, as specified in the Bill, and verification; the former only referring to the seal or the signature, whereas the latter included a comparison of the original document and copy and perhaps the examination of a witness. The French Government had said that their practice had been to give up English fugitives without the production of the witnesses which the English authorities required; but Lord Cowley met this by saying that if so it was not because the English did not send out the witnesses, but because the French autho- 2014 rities did not choose to examine them. Then it should not be forgotten that the French did send witnesses to America, although they refused to send them to England; and what did the House suppose was the explanation of this difference given by the French Minister? That America was not part of the European system, and that the distance was very great, which made all the difference. In fact, that the Ocean was wider than the Channel. This recalled to his recollection what occurred in a Select Committee upstairs, when Lord Palmerston was asked some questions by Mr. Cobden as to the difference in the salaries and expenses of the Paris and the Washington Embassies. "Well," replied his Lordship, in his own inimitable way, "the fact is, France is an old country, and America is a new country; France is a monarchy, and the United States a republic. Besides, the Atlantic Ocean rolls between." Mr. Cobden asked what difference the Atlantic Ocean made? "Well," said his Lordship, "probably none." The Committee laughed, and here the matter ended. No more questions were asked. It was said if the Convention was abolished altogether, we should be deprived of the means of following fraudulent bankrupts and others; but the objection might be met in a better way than by this Bill. The catalogue of crimes under the Extradition Treaty between France and America was larger than in the case of our treaty; they demanded more prisoners and got back more—he believed chiefly those who committed offences against property. If their object really were to get back such offenders from us, he had no idea that we should be at all anxious to keep them, and could not imagine what conceivable motive we should have for objecting to get rid of them. But if the French Government engaged to be bound by that procedure to which they were bound by the Treaty of 1843, and to send over a witness to verify the depositions, in the case of offenders against property, they would be bound also, to the like procedure in another and different class of cases, which stood on the frontier line between public and private crime, which no jurist could define accurately, and which it was better not to attempt to define accurately. They failed in 1852 to get this concession, because the House of Lords did their duty and refused it; but now he regretted to say the House of Lords had agreed to it. As the guardians of the defenceless, he 2015 hoped that House would not consent to imitate their example; and if they did so, in what light would their subserviency be regarded by the other nations of the world? Before concluding he wished to quote the testimony of a distinguished foreigner, who had been the guest of this country since 1848, as to the character of this Bill. M. Louis Blanc had written to him (Mr. Torrens) a letter, in which he said—I could give you many illustrations of the way in which the meaning of the depositions made before our Juges d'Instruction is sometimes distorted by them under the influence of party spirit. To forma correct idea of the dangerous and mischievous character of the present Bill it is necessary to bear in mind that in France justice has always been much more or less subservient to the purposes of the ruling power; that the liberty of the press has been entirely suppressed, and that there is not a shadow of what is called public control. To pass the present Bill would be, to a certain extent, to make the right of asylum a snare; to forge a weapon not unlikely to be used against innocent persons, and to incur the accusation of having surrendered to a foreign despotic power the dignity of a free nation.For his own part he looked upon the maintenance of the present law as part of the national religion, and any abandonment of it as a violation of the most sacred of our national traditions. The danger was, that if they assented to this pettifogging measure, which by a side-wind sought to accomplish a portion of the objects of a foreign Government, a further demand would be made in future Sessions. The noble Lord the Secretary for Foreign Affairs said that no such demands were intended or likely to be made, but he (Mr. Torrens) heard with his own ears the Colleague of the noble Lord who was at the head of the law in this country state from the Woolsack that he hoped the time would shortly come when the category of offences enumerated in this Bill would be extended. Upon such a subject he thought the authority of the Lord Chancellor might be taken to be at least equal to that of the Foreign Secretary. He could have no security, if this Bill passed, that in a few years more we should not be asked to make similar treaties with Russia; with Prussia, that meek, loyal, and forbearing State, of whose regard for the rights, territories, and traditions of our allies, if they still existed, we had had such overpowering proofs in the last few weeks; and with Austria, whose cruelty to political prisoners used to excite our disgust and abhorrence. He called upon 2016 the House to have more regard for our own ancient rights and customs than to tamper with our jurisprudence in the desire, which would soon be proved vain and nugatory, of conciliating a foreign Power. He begged to move, as an Amendment, that the Bill be read a second time that day three months.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Cullagh Torrens.)
§ SIR ROBERT COLLIERsaid, that as he and his late Colleague the Attorney General might be considered as in some degree responsible for this measure, he desired to say a few words upon the question, which, if completely considered, resolved itself into a very narrow compass. If he believed with his hon. Friend (Mr. M'Cullagh Torrens) that its effect would be to do away with the right of asylum in England, no man would be more earnest in his opposition to it than he. But he must observe, in the first place, that the Bill did not alter the law with respect to the category of offences contained in the Extradition Treaty. His hon. Friend had referred to some expressions made use of by the Lord Chancellor in the other House; but he (Sir Robert Collier) thought it would be time enough to discuss the question of the propriety of increasing the category of offences when there was any Bill before the House for the purpose of enlarging it. His hon. Friend was also under a great misapprehension as to the object of the Bill with reference to the evidence upon which a magistrate would act under the treaty. Under the present law before an accused person could be given up there must be, on the part of France, a warrant of arrest, setting forth the crimes of which the criminal is accused; nor could he be surrendered unless, further, the justice before whom he was brought was satisfied, by evidence, that the case laid before him would justify the committal of the accused for trial if the offence had been committed in this country. This law remained unaltered by the present Bill, and in this respect the measure was wholly distinguished from the one which was brought before the House of Lords in 1852, which provided that a criminal might be surrendered on the warrant of arrest alone without evidence. Then he understood his hon. Friend to argue that this Bill 2017 would, for the first time, permit a deposition to be accepted as evidence. But he (Sir Robert Collier) must remind the House that it was not under this Bill, but under the existing treaty, confirmed by Act of Parliament, that a deposition was, under certain circumstances, accepted as evidence against a criminal. The Bill introduced no alteration in this respect. The only change effected by the Bill was this—that whereas the Act giving effect to the Extradition Treaty provided that before a copy of a deposition could be accepted as evidence it must be verified on oath by a witness, a deposition shall for the future be accepted as a true copy upon the certificate of the Judge before whom it was taken, counter-signed by the Minister of Justice. His hon. Friend had said that Sir Robert Peel, who introduced the Act in 1843, would never have consented to such an alteration as this. But what was the fact? That since 1843, the Act known as Lord Brougham's Act had introduced a most beneficial change in the law of this country, whereby affidavits, pleadings, and other legal documents, deposed to in any foreign Court, may be proved by copy, if the seal of the Court or the signature of the Judge be attached; whereas previously this could not be done; and all that the present Bill did was to make the law as it affected the Extradition Treaty the same as the law in all other cases. This was the sole effect of the measure, and he could not conceive anything more innocuous or that less interfered with the right of asylum. His hon. Friend (Mr. M'Cullagh Torrens) seemed to suppose that the French Government had some deep-laid plan to obtain the surrender of criminals charged with political offences, and that they might send over forged documents and suppositious depositions for that purpose. He thought these suspicions of the French Government somewhat unworthy. If they did not give the French Government and Courts credit for acting with us fairly let us have no treaty with them at all—the sooner it was put an end to altogether the better. But if we entertained other feelings it was not too much to suppose that they would not certify a copy to be true unless it was true. His hon. Friend had contrasted the French acte d'accusation and the French mode of criminal procedure with our own. He (Sir Robert Collier) was too much attached to our own laws to prefer those of France; 2018 but the hon. Gentleman seemed to forget that if his contrast went for anything we ought not to enter into Extradition Treaties with any foreign Government. From that conclusion the hon. Gentleman naturally shrunk, and he felt certain that his hon. Friend would not desire anything so disastrous as that this treaty should be terminated. Having stated the scope and object of the Bill, and agreeing in the principle as to the sacredness of the right of asylum, he ventured to think that he had shown beyond all doubt that this Bill did not trench on that right, and that it was not open to any of the objections which the hon. Gentleman had stated. He hoped the House would not be deterred from giving its sanction to the measure by imagining that the treaty would be used for the purpose of obtaining possession of political offenders. That was an imaginary thing. None ever had been given up under the treaty, and what was more, they had never been demanded. It was perfectly well understood between the two countries that the treaty did not refer to political offenders, and he did not think it would be possible to make that understanding more clear by any language they could introduce into the Bill. It was, therefore, to be hoped that the House would not be deterred by imaginary evils from reaping the substantial benefits that must arise from the continuance of the treaty. Those benefits were not to be measured merely by the number of criminals that had been brought to justice under it, but by the fact that the knowledge that escape was not possible tended to prevent the commission of crime in many instances; and it was impossible to conceal from themselves that if this treaty were put an end to, the knowledge on the part of a criminal that in a few hours he could place himself in a place of safety would be a great incentive to crime. It was possible that the crime and the means of escape might be part of the same plan, and that the first would not be committed unless the latter were possible. Considering the present state of our intercourse with France, and the facility of communication which existed between the two countries, a treaty of this kind was not one merely of convenience, but of almost actual necessity. It would be a great national misfortune to both countries if by refusing to grant the proposed innocuous concession,which would be satisfactory to France, the Bill should be rejected and the treaty abrogated.
§ SIR FRANCIS GOLDSMIDsaid, that while it was impossible to deny that it was most desirable that murderers should be apprehended in both countries, at the same time the advantages derived from the treaty might be purchased very dearly if the proposed change seriously impaired, and still more if it practically destroyed, that right of asylum on which we had hitherto so greatly prided ourselves. He believed there was considerable force in the objections that had been urged against the Bill. Although it might not be the fact that French magistrates would send over here false depositions for real ones, it was by no means clear that they would not send a part only of the depositions; and therefore he should wish to retain for the accused the right of asking the witness whether he had brought over copies of the whole of the depositions that had been taken. The impartiality of French Judges could not be relied on in cases of political offences. A distinguished member of the provisional Government of 1848 had been not long since found guilty, par contumace, of conspiring to murder, on evidence of the flimsiest description. The House should only pass the Bill on the distinct knowledge that political offenders were not included—it must not be a matter of talk between diplomatic agents or be left to a mere understanding; but there should be an express declaration that the treaty did not apply to offences of a political character. If it was not possible to draw the line between crimes and political offences, that was a strong argument against passing the Bill; but if it could be drawn, it ought to be drawn in this Bill.
THE ATTORNEY GENERALsaid, he must remind the hon. and learned Gentleman who had just addressed the House (Sir Francis Goldsmid), that the view he had taken that there should be an express provision inserted in the Bill, that no offender, or alleged offender, should be given up where the crime charged was of a political character, was one which applied not to that Bill merely, but to the law of the country as it at present stood, and as it had been for a great many years, and which had not been attempted to be amended by the hon. and learned Gentle. man or any other Member. And the reason was that no attempt had ever been made, and it would be contrary to the proper understanding of these treaties that they should be made the means of demand- 2020 ing the surrender of persons charged with what are called political offences. To define, or attempt to define in an Act of Parliament offences with ingredients of a political character, would involve great difficulties. The hon. and learned Gentleman the Member for Reading had a notice of an Amendment in Committee having for its purpose that object; and he (the Attorney General) had no doubt the House would give to it its best and fairest consideration. He (the Attorney General) would first consider what was the distinct change proposed to be made by this Bill in the present state of the law, and then advert to the position of America and other countries with which we had Extradition Treaties. The change proposed was simple and clear. It did not propose to alter in any way the law as to the materials upon which any accused person was to be delivered up under the present Extradition Treaty. If a magistrate was satisfied that the depositions made in the foreign country and produced before him made out a sufficient case to show that the person charged ought to be committed for trial in this country if he had committed a similar offence here, then he might issue his warrant; and the only change it was proposed to make was, that instead of oral evidence being required that the depositions produced were true copies of the originals, the certificate of persons who had examined them, countersigned by a responsible Minister of Justice of the foreign country, was to be sufficient in future. The House would see that this was a difference merely of evidence and not of substance. The objection with regard to withholding depositions did not apply as an objection to the Bill, because whether it was to be proved by certificate or by oral evidence, the same deception could be practised if foreign Governments were disposed to have recourse to such a practice. If they adopted the hon. Gentleman the Member for Finsbury's hypothesis they might rest assured that if a witness was required to be sent over they would select one who knew nothing about any other depositions than those he came over to verify, and therefore the question resolved itself into this, that by the objection which had been raised they imputed to the Minister of the foreign Government, who certified and pledged his Government to the accuracy of the copy, that he had wilfully and knowingly certified to the Government of this country that the copy 2021 was a true copy when it was not. The course now proposed was adopted in the Foreign Evidence Act, both in criminal and civil cases, and there the sealed certificate of the officer of the Court was conclusive evidence of the accuracy of the copy of the proceedings abroad. He was surprised at hearing the hon. Member for Finsbury say that it was now proposed to do with reference to France and other countries what the United States did not do and had not been required to do. Now, that was an entire misapprehension. The Act of the Congress of the United States did exactly what the House was now asked to sanction. Mr. Dickinson, the District Attorney of the State of New York, in replying to questions put by Mr. Seward, as to the American practice on this subject, said—
The proceedings which must be taken here to enable the French authorities to obtain the extradition of such a person are—1. A complaint made under oath or affirmation before an officer vested with the requisite authority, charging such person with having committed within the jurisdiction of the French Government a crime enumerated in the treaty. On this complaint a warrant is issued for the apprehension of the accused. 2. On the accused being brought before the magistrate, such evidence must be presented as would be deemed sufficient by that officer to commit him for trial if the crime had been committed here. This evidence may consist of parole testimony, or copies of the depositions and other papers upon which an original warrant may have been granted in France, legally authenticated, so as to entitle them to be received for similar purposes in that country.And what would entitle these papers to be received in evidence in France? The legal authentication was the seal or signature of the Court before which the proceedings took place. The Act of Congress of 1860, passed to give sanction to the treaty stipulations, provided that in all cases where any deposition, warrant, or other papers, or copies thereof, should be offered in evidence, such deposition, &c., should be admitted and received in evidence for the purposes of the treaty; if they were legally and properly authenticated, so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party should have escaped: and the certificate of the principal diplomatic or consular officer of the United States, resident in such foreign country, was to be proof that any document was authenticated in the manner required by this Act. He trusted that the 2022 hon. Member for Finsbury (Mr. M'Cullagh Torrens) would re-consider his view of the matter. If the Government of France had suggested to us a mode of proceeding which the United States had refused to adopt, the hon. Member would have had a strong case for contending that we ought not to be put in a different position from the United States: but the present Bill would simply put us on the same footing with regard to France which the United States had already adopted with respect to that country. Reference had been made to the remarks of Lord Brougham and Lord Campbell, condemnatory of the working of Extradition Treaties which were said to be the same as that now proposed. Now what was really the case? The treaty entered into in 1852 between this country and France provided that the mode of extradition should be this—that the Ambassador, or other diplomatic agent of France in London, should produce to the British Government the sentence of conviction or warrant of apprehension, clearly setting forth the nature of the crime and a description of the offender, and that this should be accepted as proof positive that the individual had been convicted or was lawfully accused of having committed the crime. Lord Campbell said he felt some surprise at the novelty introduced in regard to the making the mere warrant or word of the complaining party conclusive with regard to the obligation to surrender the individual accused, the invariable rule had been that reasonable evidence should be given in all cases to the Government called upon to surrender, whereas it was now proposed to make the mere assertion of the Government conclusive of his guilt. The opinion expressed on that occasion amounted to this—that the committing magistrate must be satisfied as to the foundation for the commitment, and that the depositions made in foreign countries should show a primâ facie case of crime. The sole question raised by the present Bill was, upon what evidence was a magistrate to be satisfied that the depositions had been taken by a foreign Court? It was proposed to pay respect to the authentication of the foreign Court by its seal and signature, vouched to be its seal and signature by its Minister of Justice. That was the whole of the Bill. If a general discussion was considered desirable on Extradition Treaties it ought to be raised on some broad question, and, not on a matter of detail like that now before the House.
§ MR. J. STUART MILLSir, I do not mean to say anything against the French Government, but I think it is neither in any way improper nor at all impertinent to the question to say something about the French law, and particularly those parts of it which are thought most defective by the best Judges in France itself. There are many things in that law which are worthy of great praise, and many from which we in this country have a great deal to learn; but I never met with any enlightened Frenchman who did not think that the worst part of the French law is the law of criminal procedure, and that the mode in which the preliminary evidence is taken is the worst part even of that. The depositions which are taken preparatory to a criminal trial in France by the juge d'instruction are taken in secret. They are not taken in the presence of the accused; he is not confronted with the witnesses, much less has he any opportunity of cross-examination. It is, therefore, the easiest thing in the world to get up a false charge against a person, if on the part of any other person there is the slightest disposition to do so. I have, indeed, much confidence in the love of justice and the integrity and dignity of the French Judges, who, very often, when the trial comes on, are able to prevent these great defects in the preliminary proceedings from issuing in final injustice. But we are now called upon to surrender the accused persons upon the original depositions only. Now, we are told—and it is true—that the committing magistrate has the power, and is bound, to consider whether the evidence is such as would in his own opinion establish a primâ facie case against the accused, sufficient to warrant a committal for trial. But there is great danger lest the magistrate, not being fully aware of the differences between French and English criminal procedure, might be led, unless something is put in this Bill to guard against it, to attach the same weight, or nearly the same weight, to those depositions as if they had been taken in his presence. It would be very desirable if the magistrate is to have the power of ordering the extradition of an accused person, that something should be done in the way of directing him how to exercise it. When even so experienced a magistrate as the Chief Magistrate at Bow Street, appears to have laboured under some misapprehension in this respect, it appears to me 2024 important that magistrates should receive warning from their superiors not to attach more than the due weight to those depositions. If, however, they attach no more than the due weight to those depositions, the effect desired will not be produced. Consequently, either the French Government will have to waive the point of honour which they are said to entertain, or the new Act will be as much a dead letter as was the old one. We are told by high authorities, in a place not far from this, that the old Act was an entirely dead letter; and it has been said by every one who has spoken in favour of the Bill that the objection to it is equally an objection to the law as it stands, under which we are subject to the same obligations as are now sought to be imposed on us. I admit that nothing can be more harmless in appearance than this Bill. No substantial alteration, it is argued, is proposed in the law, and therefore nobody can possibly object to the Bill. But it unfortunately happens that although nominally there is no alteration, practically there is the greatest alteration in the world. The old Act, we are told, has not been acted upon at all—nobody has been surrendered under that Act—and it is precisely in order to call the Extradition Treaty out of the condition of a dead letter into that of a practical fact, that this Bill is brought in. If it does not do this, it answers no purpose. Therefore, if the Bill passes, one of two things must ensue: either our magistrates will give up offenders, on evidence which would be in great danger of being insufficient, or it will be necessary to come to us again on some other occasion to reinforce this Bill and make it still more easy to effect the extradition of accused persons. I can conceive that in the case of ordinary offences it may not be necessary to insist upon these considerations. But as soon as an application is made for the extradition of a political offender, we shall find the strongest reasons for hesitating on the question. If the laws of any country afford facilities for getting up a false case, that false case is very much more likely to be got up where political offences are concerned. Political offences eo nomine are not, it is true, included in the Extradition Treaty, but acts really political often come within the definition of offences which are so included. Apply this observation to the case of the French Emperor at Boulogne, and you will per- 2025 ceive—as doubtless the Emperor himself would perceive—the force of what I am advancing. The noble Lord who has introduced this Bill (Lord Stanley) has expressed his willingness, if it be possible, to exempt offences really political from being made the grounds for extradition, under the name of murder, or attempt to murder. This declaration is worthy of the noble Lord, and is such as might be expected from his character. I perfectly sympathize in the difficulties he feels. His difficulty is the case of political assassination. I do not pretend, if the only question were with reference to persons who had really done these things, that I should have much to say against it. People who do such things ought to make up their minds to sacrifice their lives; and if they have any honest feeling in the matter they generally do. When there has been an actual attempt at political assassination, it is not perhaps difficult, in most cases, to distinguish between a false charge and a true one. But it is often uncommonly so in the case of complicity in such an attempt; and these are precisely the cases in which there is most danger of a false charge. It is a thing which may happen any day, our being called upon to deliver up some person charged with complicity in such an offence; and this charge may be the most false imaginable, and yet such as is extremely likely to be entertained. If I may offer, merely by way of illustration, a case fresh in the memory of every Member of this House, I will say that Governor Eyre felt convinced that Mr. Gordon was an instigator of the insurrection in Jamaica, and on that ground Mr. Gordon was put to death, although the evidence has been pronounced by those who have examined it judicially—one of them expressed himself very strongly on the point in this House—was utterly insufficient to establish this charge. Well, we have heard no end of testimony from both sides of the House as to what a good man, a clever man, and a blameless man Mr. Eyre was. Well, then, let Mr. Eyre be all this: it follows, that let a man be as good, and wise, and blameless as it is possible for a man to be, he may yet make this mistake; and, if a Governor may make it, a King or an Emperor may make it. We cannot doubt that in such cases depositions will always be forthcoming, and that, if undue weight were attached to these depositions, it would be extremely difficult to resist the extradition of anyone 2026 charged with complicity in an attempt on the life of any foreign Sovereign or statesman. The great majority of people, especially people in power, are ready to believe almost anything against their political enemies, especially those who have said or published things tending to excite disapprobation of their conduct; as witness the case of Mr. Gordon. I am not contending for the impunity of these persons. Even those who look with the least horror on political assassination do not doubt that it ought to be punished as murder; but if the case be genuine, the forign Power should take the trouble to send over the evidence, and the accused should be tried here.
§ SIR ROUNDELL PALMERsaid, that the hon. Member for Westminster (Mr. Stuart Mill) had urged his views on this question with that calm consideration and ability which uniformly distinguished him in that House. But he must remind the opponents of this measure, that its object, so far as the French Government was concerned, was simply to remove a technical impediment which stood in the way of the Extradition Treaty being carried out. If the case of the opponents to this Bill were made out the treaty itself was not only a mistake, but one of an injurious character. Now what was the fact? We obtained from the French Government under this treaty precisely the same conditions as those which they were now demanding from us. We had never sent over a demand for extradition in any other way than with ex parte depositions which had been verified at home. The law of France never required the verification of the true copies. There was a difference between the law of France and that of this country as to the mode of committing persons for trial: in the former a man might be committed for trial in his absence; in England he would be confronted with the witnesses, and have the opportunity of cross-examination; but in England, as well as in France, depositions taken in order to found upon them a demand for extradition must be in their nature ex parte depositions, because the accused having escaped into a foreign country, the preliminary depositions could not be taken in his presence. The question resolved itself into two points—should the House take advantage of the defects in the Act to throw it over, because they wanted to get rid of it?—or, if that was not their view, should they amend those defects, retaining all ne- 2027 cessary safeguards against abuse? Was it seriously contended that a French policeman or agent of the French Government who had been taken into a public office and shown an original document, of which he said he produced a true copy, was to be believed, but that the signature and seal of the Judge of the Court and the countersign of the Minister of Justice were not to be believed? Would they believe the policeman in preference to the certificate of the Judge? It was an idle distinction which they drew in this matter, and some of the objections urged were as chimerical as the last expiring efforts of an Old Bailey counsel. Out of the four offences comprehended in the existing French Extradition Act, and therefore in this Bill, murder and attempt at murder were alone capable of any misinterpretation. It was supposed by some hon. Gentlemen that political offences might be improperly comprehended under these terms. The definition of murder in the French Penal Code, was assassination, parricide, infanticide, and poisoning. The meaning given to the word "assassination" by the French Penal Code was the killing of a person by another with premeditated malice, or by lying in wait for the purpose. Now, according to that meaning, if any person had lost his life in a civil conflict during the affair of Boulogne, consequent upon its invasion by Louis Napoleon, it could not be considered assassination, either according to the French or English Penal Code. Not according to the French, for there would be no taking of life with premeditation; nor according to the English, because resistance to the authority of the existing French Government, which would be an essential element in determining the innocence or guilt of that act, was not criminal by the law of England. Nothing could be deemed murder under the treaty except an act the criminal character of which, as constituting that offence, might be fully established on grounds common to the laws of both countries. For similar reasons the loss of life in 1819, in what was called the Massacre of Peterloo, would have been considered murder in no other country but our own. But the Extradition Act provided other securities against any improper use of the powers under it. The warrant of arrest must clearly set forth the nature of the offence of which the person was accused, and if there were any obscurity in this respect the magistrate would 2028 not act upon it. The magistrate must consider the evidence, and he must consider whether, if the offence had been committed in this country, the evidence would be sufficient to justify him in committing the man to prison to take his trial for the offence. There was nothing in the Act to prevent the accused (if he thought fit) from adducing evidence in his own exculpation in the same way as if he were brought up on a warrant with a view to his commitment upon any charge made against him in this country; and the practice, both in this country and in our colonies, had been for the magistrate to receive such evidence, and, if necessary, to allow time for its production. It must also be remembered that the identification of the person accused would always be necessary, and would in every case involve the introduction of oral testimony. Lastly, these offences must always be committed within the jurisdiction of the party who required the extradition. It was stated that a considerable number of refugees in this country had taken alarm, apprehending that a demand would be made for their extradition, and the hon. Member for Finsbury read a letter from M. Louis Blanc, who seemed to share in that alarm.
§ SIR ROUNDELL PALMERThere was no ground whatever for any such apprehension, inasmuch as those gentlemen must first go back to France and commit some one of those offences comprehended in the Bill before they could be brought within the powers of the extradition law. The offence must be clearly described; it must be supported by the same evidence as would be necessary for a man's commitment in this country, and any Government in a doubtful case would run so great a risk of failure that it was not at all likely that charges would be made lightly, or upon unsupported evidence, In M Müller's case, the English Government were not content with sending over the depositions. Witnesses, also, were sent, and in important cases a foreign Government would, probably, take the same precautions against a failure of justice. No doubt, however, in common cases of undeniable crime depositions might frequently be so clear that when properly authenticated they would be sufficient. If the magistrate held the warrant to be insufficient, the case would 2029 not be brought within the scope of the treaty; and in extreme cases, where there was reason for believing the prisoner was unlawfully detained, the Court of Queen's Bench would issue a writ of habeas corpus, when the question could be argued and determined. Under these circumstances, he could not but regard as chimerical the alarm expressed in regard to the operation of this measure. In the course taken by the French Government in the past there was reason for trusting them in the future. They had shown no disposition to abuse this treaty, and they would agree with the Government of this country that it was no part of the objects of the treaty to provide for the extradition of political offenders. He trusted that the Bill would receive the assent of the House.
MR. HENLEYsaid, he had watched with as much jealousy as most men all the laws intended to send foreigners out of this country. He did not intend to enter into the general subject of extradition, or whether such treaties were intended for the purpose of shipping our moral sewage abroad for the advantage of other countries, or after a time to bring it back, when it might be usefully applied to our own purposes—that was a large question in itself, into which he declined to enter at that time—but as to this Bill, he had a strong opinion that it was decidedly calculated to prevent, instead of to favour, what was called foul play. They must look at those things in two ways. If the country asking for extradition meant honestly, it was not of much consequence what the machinery was by which that matter was to be accomplished. If it meant dishonestly, and sought the arrest of a person upon a warrant charging him with one offence when he really meant another, that would undoubtedly be an act of bad faith. Nothing was easier than to get a person with a good Puritanical face who would swear anything; indeed, a Government might keep a man for that purpose. Such a person might come over here and swear anything against anybody that his Government desired to arrest, and his victim might be sent back with him. Now, he (Mr. Henley) asked whether, supposing that a certain individual intended to act wrong, it was not much easier to take the course suggested than to act in the way the opponents of this measure apprehended the French Government might act under the powers of this Bill? He thought that the proposed 2030 change in the law would be a protection against malpractices, and he should, therefore, support the Bill.
§ SIR GEORGE BOWYERsaid, it appeared to him that the gist of the arguments of those who supported the Amendment was not so much against the Bill as against all Treaties of Extradition, and if their arguments were worth anything they would be good against the existence of any Extradition Treaty, because there was no country which might not possibly demand the surrender of political offenders. He did not understand this excessive jealousy. If ever there was a time when Extradition Treaties were necessary, it was the present, when such facilities for locomotion existed, and a man could at once pass from one country to another, and this Bill only gave effect to a compact such as ought to exist between all civilized nations.
§ MR. P. A. TAYLORsaid, that this treaty would be acceptable to many on the score of its commercial advantages, but he was one of those who would be disposed to give up these commercial advantages for the sake of preserving the right of national asylum. Now, the only difficulty involved in this matter was that which arose in the case of political offences, and he would therefore ask the noble Lord the Secretary for Foreign Affairs, whether he was prepared to propose or to support in Committee a clause which would obviate the objection which many persons entertained to the Bill upon that score?
LORD STANLEYsaid, he should desire favourably to consider any clause that might be proposed in Committee, if it appeared to be workable. He would not, however, pledge himself to accept such a clause, because he saw very great difficulty in the way of such a definition of political and non-political offences as seemed to be desired.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided:—Ayes 77; Noes 14: Majority 63.
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for To-morrow.