HL Deb 14 February 1842 vol 60 cc317-27
Lord Brougham

had now to bring before their Lordships a subject to which he had on the first night of the Session called their attention; and having then entered at large into the question, he would say but a very few words upon the present occasion in moving for the copy of any correspondence between the Colonial-office, and the Governor of the Bahama Islands, relative to the late arrival of the Creole at Nassau. His noble Friend, the Secretary of State for Foreign Affairs, would state whether there was any such correspondence or not; and, if there was, whether he had any objection to its production, for if his noble Friend thought, that the production might have any injurious tendency, he would not press for it. In making the present motion he might say, that having again and again considered the question in all its bearings, and had an opportunity of referring to the various authorities which he understood had been cited to raise a doubt on the opposite side, and which, when examined, really amounted to little or nothing; the result of that consideration had been only to confirm, to increase, if it were possible, his confidence, in the opinion he had given on the first night of the Session. It might be perfectly true, that considered as a matter of international law alone, a foreign country may by treaty, have a right to demand of us the surrender of a person taking refuge in our territories on account of an offence alleged to be committed within their territories—it might become necessary to consider the right of one nation to require from another the delivery up of fugitives taking refuge within their territories; that was one question, and he cared not how that question was disposed of, as regarded his present purpose; but there was another question to be considered, which was wholly unavoidable. What right existed, under the municipal law of this country, to seize and deliver up criminals taking refuge there? What right had the Government to detain, still less to deliver them up? Whatever right one nation had against another nation—even by treaty, which would give the strongest right—there was, by the municipal law of the nation, no power to execute the obligation of the treaty. If such a treaty existed between any two countries, say between America and this country, and no Act of Parliament had passed enabling the Government in either country to perform its conditions, that treaty became utterly unavailable, because the law of the land prevented the possibility of its being executed. Suppose it was clear, and that no doubt existed, that a treaty were in force binding on the two parties (and such an obligation would be much more clear than any that could be pretended, under the general law of nations, the common international law), and suppose either party had omitted to take power from its own Legislature, to carry the treaty into execution, the mere existence of the treaty would not enable that power to carry the treaty into effect. The treaty would be a dead letter if the municipal law of that country did not authorise the fulfilment of its provisions. It was necessary to say so much, because he thoughts one of those who had argued the subject, particularly in America, had not kept the two questions of international law and of municipal law sufficiently apart. It was necessary that a municipal law for detaining and giving up criminals should exist, as well as the law of nations. Such a municipal law did not exist in this country. There was no power by our municipal law to seize, still less to surrender any person having committed an offence, however grave that offence might be, within the jurisdiction or limits of any other country: whether he were an alien or not, there was no power to give him up until the Legislature of this country, should arm the Government with a power to do so. He had on the first night of the Session referred to two cases, the acts of 1797 and 1802, passed for the purpose of arming the Government with the power of performing their obligations, contracted by Mr. Jay's treaty, and the treaty of Amiens, and without which acts it would have been impossible to have performed those obligations. He had stated, that the only doubt in his mind with regard to the case of the Creole, arose from the suggestion, that a piratical offence had been committed. No doubt the case of piracy was in two particulars different from the general law, respecting charges against aliens for crimes committed beyond the jurisdiction of the country; for whereas in any other case they had no power to seize or detain, yet in a case of piracy, although the party was an alien, they had power to seize and detain. That was one particular in which a difference existed; but another particular was the power of, trying the alien pirate, and therefore he had no doubt, that even in the case of piracy, we had not, and ought not to have, the power to deliver up, because where the offence was piracy we had not only the power of seizing and detaining the person, but we could send him to his trial; so that here was no deficient jurisdiction, and no fear that the criminal would go unpunished, whilst in the case of a murder alleged to have been committed by an alien in a foreign country, there was no power, either of arresting, or of bringing to trial. It was impossible to deny, and he did not deny, that this was a state of law which ought not to continue. He thought it highly expedient; he thought the interests of justice required, and the rights of good neighbourhood required, that in two countries bordering on one another, as the United States, Canada, and even that in England and in the European countries of France, Holland, and Belgium—there ought to be laws on both sides giving power, under due regulations and safeguards, to each government to secure persons who have committed offences in the territory of one, and taken refuge in the territory of the other. He could hardly imagine how nations could maintain the relationship which ought to exist between one civilised country and another without some such power; at present, however, such a power did not exist in this country; so that the whole territory of one country became an asylum for fugitives from justice in another. But as to the laws now in force, there could be no doubt; such a proceeding as seizing and detaining, much more of delivering up fugitives, was wholly illegal. He understood, that in the year 182'2, a law was passed by one of the border states of America, the state of New York, conferring the power in question on the Government. About the same time a law was passed in one of our provinces of Canada conferring the same power, and in consequence of those two laws there was a mutual giving up of persons charged with offences. A similar law had been passed in Belgium, in 1833, but only under certain restrictions, and operating only in cases where certain proceedings had already taken place with respect to the persons charged; and, above all, only in cases where there was a reciprocity of jurisprudence on this head between the two countries. It was on these grounds, that he had troubled the House with observations on the subject, and on these grounds he adhered with entire confidence to the opinion he had stated on the first night of the Session.

The Earl of Aberdeen,

in answer to the question of his noble and learned Friend, begged to inform the House that communications had taken place between the governor of the Bahamas and her Majesty's Government on the subject. Perhaps his noble and learned Friend would not press for the production of those communications in the present stage of the transaction, particularly when he informed the House what the course of her Majesty's Government had been on this question. As their Lordships might well imagine, her Majesty's Government had given the question their most serious and anxious attention, and after taking advantage "of all the assistance which they thought desirable on the subject, they had satisfied themselves that by the laws of this country there is no machinery or authority for bringing those persons to trial for mutiny and murder, still less for delivering them up or detaining them in custody. His noble Friend, the Secretary of State for the Colonial Department, had therefore sent out instructions for releasing those persons who had hitherto been detained. He was not certain whether under any colonial law these persons might be brought to trial. It was possible, as the noble and learned Lord had cited the existence of such a law in the Canadas, it might exist. He was not, however, aware of any such law. If such a law did exist, it was probable it would be acted upon; but, should there not be such a law, directions had been sent by the Government to release the parties.

Lord Denman

said, that as his noble and learned Friend had postponed this motion on account of his absence on a former evening, he would express his opinion on the law of England as applicable to the law on this subject, which, however, he would do with the greatest reluctance if it admitted of the smallest doubt. He believed that all Westminster Hall, including the judicial bench, were unanimous in holding the opinion expressed by the noble; and that, in this country there was no right of delivering up, indeed, no means of securing persons accused of crimes committed in foreign countries. The matter was under discussion frequently when the Alien Bill had been year after year before the House of Commons, and the lawyers of all parties had come to the same conclusion. To show that this view had not been adopted from political bias, he would cite a speech of Sir C. Wetherell, a man not likely to be so influenced, who had given the strongest opinion, and applied it to an example, which he must have regarded with abhorrence. He had said, If aliens are sent out of this country because they are unpopular at foreign courts, the powers of the act were abused. That they should be accused of offence in foreign countries, was no reason for refusing them protection here. The regicides of Louis XVI., if they had sought shelter here, ought not to have been sent away; exiles for crime ought to find an asylum in this country. Nor was this any new doctrine; there was a remarkable passage in the Third Institute of Lord Coke,† and one which could not be read without interest:— It is holden, and so bath been resolved that kingdoms in league with one another are sanctuaries for servants or subjects flying for safety from one kingdom to another, and upon demand made by them are not by the laws and liberties of kingdoms to be delivered. And then, founding the law on Scripture, he added, This (some held) is grounded upon the law in Deuteronomy, Non trades servum domino suo qui ad to confugerit." He then went on to mention two cases which occurred about the same time:— When Queen Elizabeth's ambassador demanded of the French king Morgan and others of her subjects that had committed treason against her, he answered, that if they acted in France he would proceed against them, adding. Omnia regna profugis esse libera, regain interesse ut sui qutsque regni libertate, tucatur !' and appealed to Elizabeth's own conduct in affording an asylum to the Prince de Condi and other Huguenots who had been in arms against the French crown. Nor were these opinions confined to the lawyers of Europe; great lawyers of America, men distinguished by their profound erudition, whose decisions are so highly respected among us, and whose valuable works on great legal questions are studied and consulted in this country with the highest advantage, held the same doctrine,—indeed Chancellor Kent, in his Commentaries on American Law (1836), appears to incline to the opinion of Grotius and Vattel, against that of other eminent jurists, that persons accused of crimes ought to be delivered up to the country where they are accused; and one case appears to have been decided by himself when he held his office in conformity with that doctrine. But it may be remarked, that the peculiar constitution of a federal government, comprehending many states with various laws, renders any decision, however respectable, of less extensive application, at least till all the particular provisions existing when it was made are fully canvassed. But Justice Story, in his more recent edition of the Conflict of Laws (1841), concludes a discussion on this subject by citing the passage from Lord Coke, adding, in terms, one chief justice in America has adhered to the same doctrine in a very elaborate judgment; that the reasoning of another chief justice, in a leading case, leads to the same conclusion, and that it stands indirectly confirmed by a majority of the judges of the Supreme Court of the United States, in a very recent case of the deepest interest. Therefore, although distinguished jurists may feel a desire for some arrangement for the surrender of foreign criminals, it would seem that the municipal law of America rests on the same principles as our own, which, as he had already stated, recognised no right, and provided no machinery by which the subjects of another state seeking refuge here could be given up to the country to which they belonged. He had, therefore come prepared respectfully to warn Secretaries of State, if it had not been rendered unnecessary by what had passed that they could not seize or detain aliens seeking refuge here without subjecting themselves to actions for damages for false imprisonment, and without further incurring the risk of a still heavier and more awful responsibility; for if a man attempted to seize an alien under such authority he might resist, and if death ensued, he would be justified in inflicting it, while those who ordered his arrest and detention would be liable to be tried for murder. He agreed with his noble and learned Friend, that the comity if nations, might be properly employed in considering of treaties and laws which would allow nations to seize and give up to each other their respective criminals. But this could only be done on the supposition that the laws of all nations should be reasonable and just, for no country could be justified in enforcing those laws which it believed to be founded on injustice, oppression, and cruelty. Some few great criminals had possibly been given up, without notice; but he believed that the United States of America had refused to give up an English subject charged with forgery, because they disapproved of the punishment of death for that crime, and until the internal law of all countries was such that each would have no objection to adopt it, he feared that this desirable object could not be accomplished. He indulged a hope that those distinguished persons, the judges and jurists in America, who had been referred to, would in common with those of other countries, apply their minds to these considerations. But he could not help observing, that the general subject was not without its difficulties, and with reference to that country, that the existence of slavery, and much more the existence of the slave trade, the encouragement given to it, were inseparable perhaps also (as it may be thought) will some degree of encou- ragement, may throw obstacles in the way of such a law. It was clear that every form of crime might include questions of slavery and the slave trade, and equally clear, that no English Government or Legislature would, in the slightest degree directly or indirectly, consent to the promotion of the detestable traffic, or in any way become either policemen or gaolers, or enforce the right of the master, as they were called, over the slave. With reference to the present occasion, he, for his part, rejoiced to hear, that two hundred human beings had succeeded in rescuing themselves from slavery, however all men must regret that any blood had been shed. He threw that out by way of protest against being supposed to admit any crime in those persons accused, or to enter at all into the merits of the particular case, his opinion on which he should suspend till all the facts were made known, either by a trial for piracy here, or in any other form of proceeding. But having said these few words on the general question, he had thought it right to observe that the existence of this most nefarious traffic presented a most formidable objection to the establishment of a generals jurisdiction, by which punishment might be inflicted on all such offences wherever committed, as all the nations of the earth are equally interested in suppressing.

Lord Campbell

said, that after the statement if their opinions by his two noble and learned Friends, he should not have felt it necessary to address their Lordships, if it had not been asserted, and widely circulated, that he had, when Attorney General, advised that men similarly circumstanced should be sent home for trial. Nothing could be more contrary to the fact than such a statement. He had never given any opinion of the kind. On the contrary, he had held that, by the law of nations, no state had a right to demand from another the surrender of any of its subjects; and that in the case of England, the municipal law did not authorize or enable the executive to comply with any such demand. He agreed with the Lord Chief Justice, that it might be very convenient to have treaties, under which persons accused of murder, and other high crimes, should be surrendered, but such treaties would not justify the demand being acted on, until the municipal law provides the means for carrying the treaties into execution. Without an Act of Parliament there was no authority for giving up a refugee to any foreign state. Mr. Martens, an eminent professor, of the University of Gottingen, put the question in the clearest, point of view. He says, There is no case in which a sovereign is obliged to send criminals for punishment to their own country, or to the place where the crime was committed—not even if they had been condemned before they made their escape. To send criminals to be tried in their own country has never been granted, excepting in virtue of a treaty, His noble and learned Friend (Lord Denman) had paid a deserved compliment to the legal authorities of the United States. Mr. Burke was one of the first to do the Americans justice in this respect, and there was no doubt that their treatises on certain branches of the law were superior to our own. One of the ablest of these writers was the present American minister at Berlin, who, in a work he had produced on international law, had laid it down that— No sovereign state is bound, unless by special compact, to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country, upon the demands of a foreign state or its officers of justice. The extradition of persons charged with or convicted of criminal offences affecting the general peace and security of society is, however, voluntarily practised by certain states as a matter of general convenience and comity." For his own part, he should like to see some general law enacted, and held binding on all states, that each should surrender to the demand of the others all persons charged with serious offences, except political. This, however, he feared, was a rule or law which it would be difficult to get all nations to concur in. To show how cautious states should be in making such concessions he would mention a case which occurred when he was Attorney-general. A treaty had been agreed upon between the state of New York, and the province of Canada, by which the Government of each agreed, reciprocally, to deliver up the citizens or subjects of the other against whom grand juries had found a bill, and who had sought refuge within the territories of the other. It happened that a slave had escaped from his master in the state of New York, and got to Ca- nada. To facilitate his escape, he rode a horse of his master's for a part of the way, but turned him back on his reaching the frontier. The authorities of New York well knew that England would not give up a runaway slave, and that, as such, they could not claim him under the treaty; they therefore had a bill of indictment against him before a New York grand jury for stealing the horse, though it was clear the animus furandi was wanting. The grand jury, however, found a true bill against him for the felony, and he was claimed under the treaty. The governor, under such circumstances, refused to give him up until he had consulted the Government in England. He (Lord Campbell) was consulted, and gave it as his opinion, that the man ought not to be given up, as the true bill, where no felony had been committed, did not bring the case within the treaty. The man was not given up, and there the matter rested. This, he repeated, showed the necessity of the greatest caution where reciprocal rights of surrender were granted between states. As to the other question, supposed to arise out of the facts connected with the Creole, he supposed that no more would be heard of the claim of compensation for slaves liberated on their arrival in an English port. While slavery existed in any of the territories of Great Britain, the lex loci might perhaps; but there was an end of slavery, and a slave was as much free when he arrived in the Bahamas or at Bermuda, as if he had reached Portsmouth or Plymouth. No wrong having been committed, there must be an end of the notion of compensation. Such was his decided opinion, and he trusted that this affair of the Creole would be no obstacle to an amicable adjustment of all differences between the two countries.

Lord Cottenham

said, that after the speeches of his noble and learned Friends, it would be unnecessary for him to take up their Lordships' time by offering any observations, unless he should find it necessary to reply to the remarks of any noble and learned Lord who might perhaps take a different view of the question. If no objection should be made to the opinions given by his noble and learned Friends, it would be unnecessary for him to add anything to what was already so well said.

The Lord Chancellor

apprehended that he was the only law Lord in the House who had not yet given his opinion. He had been consulted upon the question, as well as the Attorney and Solicitor-general, and, without pretending to state the terms in which their opinion bad been given, he might say that it fully agreed with what had been advanced by noble and learned Lords who had already spoken. He did not think that a second opinion could be entertained.

Lord Brougham.

His noble and learned Friend (Lord Denman) was right in supposing he had alluded to Chancellor Kent's very able work. But it was to be observed, that though no one carried the doctrine of an international right of surrender, so far as this able lawyer, he admitted the necessity of a municipal law, in order to arm the Government with the power. He (Lord Brougham) felt authorised by Lord Wynford and Lord Abinger, who had both attended last Friday, for the purpose of stating their opinions, that they took the same view of the question with himself, and the noble and learned Lords, who had addressed the House. Lord Wynford, indeed, as regarded the surrender of slaves, had many years ago delivered an able judgment in the Court of King's Bench, in the case of Forbes v. Cochrane, extending the principle of Somerset's case to slaves escaping and received on board of British ships. But as to slaves not charged with offences, no one affected now to entertain any doubt.

Motion withdrawn.

Adjourned.