§ Order of the Day for the House to be put into Committee, read.
§ The EARL of MALMESBURYsaid, that when the Bill was in Committee, he hoped to have the assistance of noble and learned Lords in making such a Convention and Act of Parliament as the requirements of the case demanded. A variety of opinions had been offered the other evening with reference to the securities which ought to be required to prevent the liberty of subjects of foreign Powers who had received the protection of this country from being invaded. So much difference of opinion prevailed on this point, that he thought it advisable to propose some alterations of the Bill in Committee. One main objection to the clause which had been discussed the other evening was, that if any alteration were attempted in the Convention by the Act of Parliament, it would put an end to the whole thing sought to be attained. But this was not the case. If their Lordships pleased to give him such powers as he required, he would undertake to get a new Convention drawn up in twenty-four hours. As far as the proposed Amendments went, the French Government was satisfied with them. With respect to the principal points of the Bill, it was objected that the Act would have a retrospective effect, and would extend to now crimes not named in the old Convention. He begged to say, that in the former Bill, there was a paragraph omitted by the printer in mistake from the clause, which contained a recital of crimes, and that paragraph declared that no person charged with an offence should be given up unless the offence charged against him was one which was contained in the recitals of the respective Conventions. The most important Amendment he had to propose to their Lordships was one which, he hoped, if adopted, would meet the jealous fear of noble Lords as to the liberty of the subject. It was at first proposed to surrender criminals on a magistrate being satisfied with their identity. Instead of this 499 he proposed that the Secretary of State should not issue his warrant for the apprehension of the accused until documentary proof of the accusation was produced. On no account was the accused to he surrendered to the French Government until something had been received from the Juge d'Instruction in the shape of proof positive of crime. He considered that this Amendment would give a security to the Secretary of State when called upon to transfer criminals to another country. He would beg to remind their Lordships that the Juge d'Instruction was not an executive judge, or connected with the Government; he was an independent judge, and did not issue his mandat d'arret till he had gone through the whole case. Having said so much in explanation of his proposed Amendments, he would say he proposed nothing more, except with reference to the seventh article of the Convention, which related to protection afforded to refugees on account of political offences. He was promised by the French Ambassador that a law exactly analogous to the law he proposed to establish should be passed in France. The noble Earl opposite smiled; but if the noble Earl did not believe in the honesty and good faith of Governments, what was the use of making conventions at all? At all events, there was this hold upon the French authorities, that this Convention could not be put in motion until both parties agreed that it should operate. The object, therefore, of the Convention could not he frustrated, because it would not be put into operation until the provisions and stipulations of the French Government had been fulfilled. In the Committee he should move the Amendments of which he had given notice.
§ Moved —"That the House do now resolve itself into Committee."
LORD CAMPBELLsaid, he felt confident that their Lordships would assist cordially in carrying this measure out. In the shape in which it was originally introduced it was inadmissible; but by the Amendment proposed it was certainly rendered less objectionable. The original terms of the Bill would have placed every Frenchman in this country at the mercy of the French Government; but the alteration now proposed certainly made the arrangement less objectionable, because it was now intended by the noble Earl that the party accused should not be delivered up until a certificate from the Juge d'In- 500 struction arrived. Still, he would have considerable hesitation in giving implicit credence to such a certificate; and although he could not require evidence against the party accused, strictly and technically equivalent to what would be sufficient in our law to justify his commitment, still, unless the Secretary of State took care to exact satisfactory evidence that the party was one who ought to be surrendered, England would lose its distinctive character as affording a safe asylum for the political refugees of all nations. Why, if the proposed Convention was agreed to, and a change of Government hereafter took place in France, the Prince President, if he took refuge in England, might himself be given up upon a mere mandat d'arret, and the certificate of a Juge d'Instruction. He (Lord Campbell) thought the Bill should be withdrawn, and a fresh Convention framed, to be afterwards ratified by an act of Parliament.
LORD BROUGHAMsaid, the noble Earl the Secretary of State had proposed several very material improvements in his Bill, but how far they would be sufficient would depend on what the real spirit of the French law was. If the warrant of the Juge d'Instruction was a document, was really something in the nature of a bill of indictment found by a grant jury, it might be sufficient to justify the Secretary of State in giving up the accused. But he would not exclude any other means of giving proof— it would be enough if prima facie evidence of some other kind was furnished to satisfy the Secretary of State that the party ought to be delivered up to his Government; on the other hand, if all that the Juge d'Instruction did was to examine the pieces d'accusation laid before him, without taking any evidence at all, that would be a most unsatisfactory ground for ordering that a party in this country should be surrendered. He (Lord Brougham) would suggest that the noble Earl should print all his amendments, and allow the Bill to stand over for a few days. Then, if the alterations were considered by their Lordships to afford proper securities, there would be no difficulty in having another Convention, or in making such additions to the present Convention as would enable them to legislate with effect upon the subject.
§ The EARL of MALMESBURYexplained that the mise en accusation was the result of a judicial inquiry, not before a Juge d'Instruction, but before a court of judges of a much higher order. A mandat 501 d'arrêt was a warrant issued by the Juge d'Instruction himself; but it was the result of a judicial inquiry. He had no objection to reprint the Bill, if the Bill was allowed to go through Committee, and the further discussion deferred to the bringing up of the report.
§ The EARL of ABERDEENasked what it was that prevented the French Government from furnishing proof of the guilt of the party whose extradition they demanded? The noble Earl said that, under the present existing Convention, persons were demanded by the French Government whom the British Government were not able to surrender. Why could they not surrender them? Because the French Government did not comply with the terms of the Convention, and produce that amount of proof of the guilt of the accused which would warrant his arrest and commitment in this country if the offence had been committed against our laws. That was the principle which had been uniformly laid down; it was incorporated in the 20th Article of the Treaty of Amiens, and also in the treaty with America, and likewise in the treaty with France. Now, however, it was sought to introduce an entirely new condition of surrender—the law of this country having hitherto given to the foreigner the same protection as was enjoyed by the Englishman. He confessed, therefore, that he thought it a very serious matter to depart from the old established rule which always had existed for the protection of foreigners, and which was recognised in each of the treatises to which he had referred. At the same time, if the mise en accusation was really sufficient to meet the requirements of the principle long laid down, and to furnish evidence such as would justify the arrest and commitment of the party if he had transgressed the laws of this country, he (the Earl of Aberdeen) would not offer any objection to the proposition of the noble Earl opposite.
§ The EARL of DERBYsaid, that the noble Earl who had just spoken appeared to have forgotten what took place in the year 1846; for among the papers on this subject in that year, he found a communication from the noble Earl to Count St. Aulaire, in which it was stated that the note of the French Ambassador had been referred to the Home Department, and to the law officers of the Government, and that all these authorities were of opinion, in which Lord Aberdeen entirely concurred, that to obviate the difficulty complained of by the French Government, a 502 new Convention and a new Act of Parliament were necessary; and that in such new Convention the clause requiring that French subjects should not be delivered up, unless the evidence of their guilt was such as to warrant their commitment for trial by the law of the country in which they had taken refuge, ought to be altogether omitted, as being contrary to the real intention of the contracting Powers, and productive of many causes of insuperable difficulty in carrying out the object of the Convention.
The LORD CHANCELLORsaid, that the late Government had approved of the stipulations which had been embodied in the Convention. The proposition of the Government was to allow a party to be taken into custody upon a mandat d'arrêt, but not to be given up to his Government until much more solemn stops had been taken that would establish his guilt. They had no wish or intention to abandon the right of affording hospitality to all persons of every nation who came to seek refuge on our shores; but, the Convention of 1843 not having worked at all for France, although it had worked well for England, nothing was more reasonable than that the French Government should desire an arrangement the benefits of which should be reciprocal, and not all on one side. Her Majesty's Government had therefore found it to be its duty to enter into a new convention with France, and that being so, he was sure their Lordships would not, upon any light considerations, wish to disturb what had thus been agreed upon. Some weight, he thought, ought to be attached to the decision of the Government, acting upon its responsibility; and if every clause of the Convention was to be spelt out, and difficulties raised upon every item of its provisions, it would be almost impossible to frame a convention by which every one of their Lordships present would be willing to be bound, and which would also in every respect satisfy those Members of their Lordships' House who were absent— to say nothing of the discussions and alterations that might be required to meet the wishes of the other House when they saw the example that had been set them by their Lordships. Why, half-a- dozen experimental conventions might he necessary before they decided upon a final one, and the Government of this country would be lowered in the estimation of the world, and would not stand in the position they ought to occupy in their intercourse with foreign Governments. Her Majesty's Go- 503 vernment had every desire to accord full protection to political refugees within proper conditions; and he therefore hoped their Lordships would see no sufficient grounds for preventing the Bill from proceeding in its present shape.
§ EARL GRANVILLEdescribed the course taken by the Government of which he was a member in reference to a new convention with France; and said that he felt that there was great weight in some of the objections which had been urged against the proposed arrangement. But as the noble Earl had agreed to provide that no person should be surrendered until sufficient information had been given to show the nature of the offence charged against him, Parliament ought certainly to agree to some new arrangement with France, to relieve that country from the anomalous position in which it now stood in reference to the extradition of French criminals by this country, for unless some such arrangement were adopted, the French Government, which had derived no benefit whatever from the existing Convention, would, it was quite certain, resolve on terminating it altogether. It was certainly most desirable that precautions should be taken against allowing refugees to be sacrificed, but these precautions were, he believed, taken in the Convention. Certain other securities had, however, been suggested; and he thought that the object which they all had in view might be obtained, if they adopted some such arrangement as that proposed by the noble and learned Lord behind him—namely, that the Bill should be printed for the purpose of enabling them further to consider the subject.
§ LORD CRANWORTHsaid, he was glad to hear that the Convention had been entered into by the late Government, because in finding fault with it he could not, in that case, be supposed to be influenced by any party feeling. The stipulation of the Convention of 1843, that no Frenchmen accused of crime should be delivered up, unless his criminality should be established by such evidence as would have warranted his committal if the crime had been committed in this country, was a provision obviously calculated to render the Convention inoperative for the surrender of French criminals by this country, because, before a French criminal could be surrendered, that provision assumed that witnesses must be brought over from France, perhaps from places as distant as the Pyrenees, and that they should then make depositions which would warrant a magis- 504 trate in committing the person accused if the offence had been done in Middlesex. Of course such a proceeding had never taken place, and never would take place, on account of the great delay, vexation, and expense which it would involve. How was that evil to be remedied? It would seem that the obvious remedy was that the Secretary of State should be empowered to give up a refugee on the receipt of proofs that proceedings had taken place in France analogous to those which took place previously to a commitment in this country. He thought, that upon the faith of such proceedings, a criminal might be given up. That was the purport of the arrangement which they all wished to see adopted. But it was then proposed that they should be content with the mise en accusation, and he had to state that he could not say "Ay" or "No" to that proposal until he should become better informed than he was at present of the nature and effect of a mise en accusation. If he could be satisfied that that proceeding was analogous to an indictment in this country —that it afforded prima facie evidence of guilt—he could see no objection to the proposal. But he thought that, under any circumstances, some discretion ought to be given to the Secretary of State, and that he should not be absolutely compelled to give up refugees in all cases. There was a clause stating that political refugees should not he surrendered; but who was to determine what parties were to be considered as political refugees? A political leader might, in a time of revolution, stop the mails; and he might afterwards be regarded either as a political offender or as a person guilty of a robbery. In that and similar cases it would, he thought, be necessary that they should leave discretionary powers in the hands of the Secretary of State. In his opinion they ought to keep two objects in view—first, that they ought not to make any stipulation which would be absolutely imperative on either country; and, secondly, they ought not to stipulate for the surrender of any person without receiving such depositions as would afford a reasonable prima facie evidence of his guilt.
The LORD CHANCELLORobserved that by one of the sections of the Act, power was expressly reserved to the Secretary of State to snpersede the proceedings if he should think there was a case for doing so; and therefore there was a discretionary power such as had been recommended by the noble and learned Lord.
§ LORD BEAUMONTsaid, that in point of fact we trusted the President of the French himself, for it was a condition that the Keeper of the Seals, after an examination of all the documents in respect to a person charged with crime, should address a report to the President of the Republic, who, if due cause were shown, should issue a Presidential decree for the surrender of the alleged criminal. He, therefore, thought it should be required that the magistrate acting in reference to a similar case in this country, should make a report to the Secretary of State, who, if due cause were shown, should order the surrender of the party charged with crime. There was nothing in the Convention which gave this discretionary power. He denied that the magistrate had a discretion, for he made no report of the circumstances, and nothing was referred to the Secretary of State, who had no power to stop the proceedings, or to prevent the party charged with crime from being delivered up.
§ The EARL of MALMESBURYThat has been altered.
§ LORD BEAUMONTThe noble Earl said that had been altered. He would therefore ask the noble Earl, if this were the Convention which he had signed?—for if it were, he (Lord Beaumont) was correct; if not, he was surprised that the noble Earl should lay a Convention which was not the true one on the table of their Lordships' House. If the clauses of the Bill which they were discussing were not in accordance with the Convention, then the preamble had not been proved. He hoped their Lordships would not proceed with this Bill, but that the noble Earl would prepare another Convention in accordance with the suggestions which had been offered to him, and would then bring forward a Bill founded on that Convention. He considered that a provision should be made, that when a person was given up who was not entitled to he given up, he should be returned to the place in which he had been arrested. He considered, also, that the mise en accusation would not be sufficient to justify a magistrate of this country in giving up the person against whom it had been made.
§ LORD BEAUMONTIf on the face of the mise en accusation there be sufficient to justify the magistrate in issuing his warrant, that is all I require.
The DUKE of ARGYLLsaid, the Bill, 506 according to its terms, did not appear to enable the Secretary of State to exercise a discretionary power. Whilst the French Government retained in its own hands the power of judging of all the circumstances of the case, the English Government were charged with the duty of issuing the warrant, on proof given of the identity of the party. The Bill professed to enable the Secretary of State to do that which the Convention did not enable him to do. Unless we were to receive evidence in England, he hardly saw how we were to judge of the criminality of a prisoner. He thought the security they were all anxious to obtain with reference to political offenders, could be had, to a certain extent, if the Secretary of State was entrusted with a discretionary power. It was a matter of primary importance that the Secretary of State should have that discretionary power, and the more especially as there were now to be twenty specified offences instead of three as at present.
§ The EARL of ABERDEENsaid, the discretion which the noble and learned Lord found in the Bill only applied to one article in it—namely, Article 10. But it was quite fit the discretion should be extended. Nobody could be more sensible than he (the Earl of Aberdeen) was of the necessity of some alteration in the present law; for he had had too many complaints of the impossibility of executing it not to be perfectly aware of its defects. He was willing to assent to the proposal of the noble Earl, if the mise en accusation did furnish a reasonable presumption that there was a ground for trial.
LORD MALMESBURYsaid, the mise en accusation was not the best, though it was the nearest proof they could possibly obtain.
LOUD BROUGHAMsaid, if the mise en accusation was tantamount to an indictment they would require the Act, for without that it would not come within the purview of his noble Friend's Bill.
§ After a few words from Lord CAMPBELL,
The LORD CHANCELLORsaid, it was stated we were forced to deliver up on a mere warrant, and that the French were not so forced to deliver up without they saw due cause. And then something was said about the Prince President. Why, the Prince President happened to be his own Minister, and therefore he reserved to himself a power which he would have given 507 to a chief officer of his Government if there had been any such corresponding to our Secretary of State.
LORD CAMPBELLsaid, he did not think it proper that the Secretary of State of England should be restricted as was done by the Convention, which gave a discretionary power on the French side, but none on the English. This power could not be introduced into the Bill unless it was in the Convention. He suggested that the same power should be given on both sides of the water, and the same obligations. Lord Aberdeen's Convention had proved ineffectual, because it required the same evidence as was necessary to commit a man under the English law. It was now proposed to dispense with this; but a discretionary power ought to be retained.
The EARL of MINTOconsidered that the Bill could not be proceeded with to the end, unless they had another Convention.
§ The EARL of MALMESBURYexpressed his desire that a discretionary power should be vested in the Secretary of State. He would suggest that their Lordships should now go into Committee on the Bill, when the Amendments he had to propose might be introduced and afterwards printed, and they could then be considered on Monday.
§ After a few words from Lord CAMPBELL, the LORD CHANCELLOR, and the Earl of MINTO,
§ On Question, Resolved in the Affirmative: House in Committee accordingly.
§ The EARL of ABERDEENsaid, the Convention was recited in the preamble of the Bill. Now he begged to know whether the Amendments which the noble Earl proposed to print related to the existing Convention between France and this country, or to a new Convention?
§ The EARL of DERBYreplied, that one of the Amendments to be proposed would provide that any further convention or stipulation which might be entered into between Her Majesty and the French Republic for making the terms of the present Convention consonant with the provisions of the Act, should be deemed and taken to be part of the said Convention.
§ LORD BEAUMONTthought it was desirable that before their Lordships assented to such a provision, they should understand what the nature of the Convention really was.
§ The EARL of DERBYstated, that the Convention as it stood had received the consideration of two successive Govern- 508 ments of this country; the French Government had shown every disposition to enter into the most amicable arrangements; the Convention had been framed by the most able lawyers, and it had received the most careful attention of the most eminent men both in England and France. He doubted, however, whether if half-a-dozen Conventions were framed, objections would not be made to every one of them.
§ The EARL of ABERDEENsaid, that what Parliament was now called upon to do was, to give effect, by this Bill, to a new Convention which had been entered into between the French and the English Governments. He would venture to say that the existing Convention, which they were now called upon to alter, had been prepared by men as learned, as able, and as willing to effect the purpose in view, as any of the persons to whom the noble Earl had referred; and yet it had been found that that Convention had failed, and the present might do the same. He said, therefore, that their Lordships were bound to see that this Convention was likely to carry out the intentions of the Governments by whom it was made. With respect to the Amendments which the noble Earl said be intended to introduce, their Lordships must see them before they could judge of them. It was quite a new thing in legislation to point out what had no existence, and to say that their Lordships must either approve or disapprove of that with respect to which they had no means of judging.
The LORD CHANCELLORwas afraid that some misapprehension existed with respect to the effect of the proposed proviso. Their Lordships were not called upon to give effect to a treaty which had not yet been entered into by Her Majesty. They were at present deciding as a branch of the Legislature to what extent they would give effect to a treaty which had actually been made by Her Majesty by the advice of Her servants; and what was proposed by the proviso was, that if a supplementary treaty should be agreed to in order to bring the principal treaty within the limits to which their Lordships had agreed upon, it should be taken to be part and portion of the said treaty. It would be perfectly optional both with Her Majesty and the French Government to concur or not in the proposed supplementary treaty.
§ Amendments made: The Report thereof to be received on Monday next.
§ House adjourned to Monday next.