EXTRADITION OF OFFENDERS. (Hansard, 30 June 1843)

§ The Earl of Aberdeen
in moving the second reading of the Apprehension of Offenders (America) Bill, said he presumed the ob- 473 ject of the measure would meet with general support. It seemed natural and reasonable, that friendly and neighbouring states should aid each other the detection and punishment of acts considered criminal by the whole of the civilised world, by which life and property were attacked. Many writers had maintained that this was a duty which governments owed to each other; among others, those who were most quoted, and considered of most authority in this country, Grotius and Vattel, both declared it a national duty. That doctrine had received support from English judges; but as the law stood, it was now he believed, universally admitted that no power existed in this country of delivering any persons to the authorities of a foreign state, without the sanction of an act of Parliament. The' principle was fully laid down last year, in the case of the Creole, by noble and learned Members of that House, that to deliver up the individuals concerned therein to be tried for murder, was not within the competence of Government. Their Lordships might be aware that the treaty of 1794 with the United States of America, contained a provision similar in principle to the object of the present bill. The class of offenders to which that treaty related, was not so numerous as that embraced by the present bill, and its duration was limited. It expired in 1806, and though a new treaty was negotiated in that year, as it was not ratified, no such stipulations had since been in existence. From various circumstances it had been impossible to come to an understanding on the subject with the United States Government, until the mission of his noble Friend near him enabled him to take up the subject, and conclude an engagement with the United States similar to one proposed in 1840. The crimes specified in the treaty of Washington were —murder, assault with intent to commit murder, piracy, forgery, arson, robbery, or the utterance of forged paper. He did not anticipate that any inconvenience could arise from the carrying out of this treaty, except what referred to the case of fugitive slaves, and this was no doubt a subject that would require the utmost caution on the part of those who would have to administer the law arising from the new relations between the two countries. Some people had supposed that a fugitive slave might be delivered up under this 474 treaty. This, be must say, was a most unfounded notion. Not only was a fugitive slave guilty of no crime in endeavouring to escape from a state of bondage, but he was entitled to the sympathy and encouragement of all those who were animated by Christian feelings. But then it had been said, a slave running away might be accused of theft on the ground that the very clothes he wore were not his own, but the property of his master. This, however, in his judgment could never be construed into a theft. Nay, more, if the slave took a horse with him, or seized upon a boat, or in short, appropriated to his use anything that was necessary to his flight, such an act could never be held to establish an animus furandi. Another point must be borne in mind, namely, that if at any time a fugitive slave should be demanded under this treaty, the demand would not be made by any slave state, but by the central government at Washington, and this would in itself be a considerable security against any improper application. Another security against any improper application would be found in the reference which would be made to the home Government by the governors of colonies, in case of any difficulty arising, when the home Government would, of course, be assisted by the best legal advice that could be obtained. But the great security was that by an express stipulation in the treaty it was agreed that the articles by which the two governments bound themselves to a mutual surrender of criminals, should continue in force only till one or other of the two governments signified its intention to terminate it, so that, whenever inconveniences, arose, either government was at liberty to put an end to that part of the treaty, without being under the necessity of giving any notice beforehand. The convention with France was of a more limited nature. Here also, a similar convention had been entered into on a former occasion, and provisions had been introduced into the Alien Bill of 1802, with a view to give effect to it. But the peace at that period was so short in its duration, that the convention never came into force. The French government had since expressed an anxiety on several occasions to renew that treaty, and the present moment had been deemed particularly well calculated for renewing it, as it was thought desirable to improve that spirit of good 475 neighbourhood and those friendly relations that at present so happily existed between the two countries. It had been thought most advisable, however, to begin with the same articles as were contained in the treaty of Amiens, and farther extension might afterwards be easily given to the principles. The treaty with France had been made valid for one year, and afterwards, until six months after either party had intimated a wish to terminate the arrangement. He hoped, under these circumstances, that no objection would be made to the second reading of these bills.

Lord Brougham
had listened with much gratification to the satisfactory statement of his noble Friend, and particularly to that part of his application which referred to fugitive slaves. It might, however, be matter for future consideration whether it would not be better to introduce some explanatory clause into the bill, in order to do away with all ambiguity on this point. He felt great satisfaction at observing in these bills a proof of the good feeling that existed between the several countries parties to these treaties.

§ Lord Cottenham
was understood to express an opinion that some legislative measure would be desirable to explain the nature of those acts that might be offences in the one country but not in the other.

Lord Campbell
said, he highly approved of these bills. Without treaty it was clear that no state was bound to deliver up offenders to be tried for crimes committed out of its territories, but there was an imperfect obligation on all states for the general security of mankind to enter into treaties for reciprocal extradition. The only anxiety here was, that the slave-holding provinces in America might not be permitted to pervert this arrangement into an instrument of reclaiming fugitive slaves. But the principal object of his then offering himself to the attention of the House was to submit that there were other articles of the Treaty of 'Washington, which required to be sanctioned by the legislature. He did not mean to revive any of the questions which had been agitated on the merits of that treaty. He was willing that it should be carried into full effect, as much as if it had been in all respects for the honor and advantage of England. The third article stipulates that the produce of the territory ceded to America on the banks of the river St. John, when it is brought down that river 476 to New Brunswick, shall be dealt with as if it were the produce of that province, so that it may be shipped to England as English colonial produce, and may be imported into England as English colonial produce, paying duties as English colonial produce. This might be all very proper, but could not be done by the mere prerogative of the Crown, as the duties to be paid on the produce of the United States of America, and on the produce of the English colonies, had been fixed by act of Parliament. A still more important consideration arose from the Boundary Line which transferred an English settlement to the United States. The Treaty of Washington in fixing the Boundary, did not proceed upon a construction of the Treaty of Versailles, agreed to between Oswald and Franklin. This treaty was disregarded by Lord Ashburton and Mr. Webster, who "agreed on a conventional line convenient to both parties, with such equivalents and compensations as were deemed just and reasonable." By this conventional line the Madawaska settlement on the right bank of the St. John's was made over to the Americans. The history of this settlement was given by the noble negotiator himself in a letter to Mr. Webster. It was originally formed from the French establishments in Acadie, and has been uninterrupted under French or British dominion, and never under any other laws. The inhabitants have professed great apprehensions of being surrendered by Great Britain, and have lately sent an earnest petition to the Queen deprecating that being done. The inhabitants before the treaty were, English subjects governed by English magistrates, owing allegiance to the Crown of England. The Queen's writ and no other writ ran in that settlement. The settlement must be considered as part of the British Empire. Could it be alienated by the mere power of the prerogative? He apprehended that it could not. The Queen can declare war and make treaties of peace. A conquest made in war at the conclusion of peace, might be delivered back, and if de facto an English possession had been taken from us during the war, the Crown by a treaty of peace might probably renounce all claim to it. But when by treaty a territory had been annexed to the Crown in full Sovereignty, and in time of peace we were in possession of it, he denied the right of 477 the Crown to surrender it by treaty to a foreign state. All Jurists agreed that the' alienation of territory can only be by the supreme authority in any state. The venal instance given in the treaty of Madrid, by which Francis I, stipulated to surrender the Duchy of Burgundy to Charles V. The Kings of France could then make peace and war, but the States-general, from time to time met. The States-general not having ratified this treaty, it was not considered binding on France, and France was not considered guilty of bad faith in refusing to fulfil it. Vattel says: But now that there are no longer any meetings of the States-general in France; the King remains the sole organ of the state, with respect to other powers, these latter have a right to take his will for that of all France; and the cessions the King might make them, would remain valid, in virtue of the tacit consent by which the nation has vested the King with unlimited powers to treat with them. Were it otherwise, no solid treaty could be entered into with the Crown of France. For greater security however, other powers have often required that their treaties should be registered in the Parliament of Paris: but at present even this formality seems to be laid aside. What says this great Jurist respecting the constitution of England? The Kings of England are authorised to conclude treaties of peace and alliance; but they cannot by those treaties alienate any of the possessions of the Crown, without the consent of Parliament. The Madawaska settlement being un-distinguishable in this respect from Quebec, the cession of it required Parliamentary ratification. The House might recollect that in the year 1783, there was a controversy on this subject between two great lawyers, Lord Loughborough and Lord Thurlow—the former contending that the treaty with the United States required the sanction of Parliament—which was stoutly denied by the latter—but his reasoning is quite consistent with the necessity of an act of Parliament on this occasion, for before the commencement of the negotiation there had been an act passed to authorize the Crown to treat with the revolted colonies, and as we had de facto lost the territory, it was a mere release of allegiance. It was monstrous, however, to suppose that the Crown could by treaty now alienate to a foreign state, the Island of Jamaica, or the Isle of Man, or the Isle 478 of Wight, or the Isle of Thanet, or the Isle of Dogs. If such a power exists, it is fully executed, and the transfer takes place the moment the treaty is ratified by the Crown, so that the empire might be dismembered, and the country irretrievably ruined before Parliament was made aware of the calamity. He trusted, therefore, that to sanction the 1st. Article of the Treaty of Washington, the Government would bring in a bill which would no doubt receive the unanimous consent of both Houses.

§ The Earl of Aberdeen
said, the suggestion of the noble and learned Lord was certainly deserving of consideration. Such a step, however, must be taken as the noble and learned Lord suggested, sanctioned by the other House.

§ The Marquess of Lansdowne
said, there were two crimes omitted in the treaty with France, which were inserted in that with America. He should like to know the reason why such a difference existed.

§ The Earl of Aberdeen:
Perhaps there was no very good reason why it should be so. The two treaties, however, had no connection with each other. The reason of the omission which the noble Marquess pointed out was this: the treaty of Amiens never having been carried into execution, it was thought prudent to renew its conditions, and the crimes now enumerated were all that were included in the former treaty. The French Government were desirous that the treaty should have been so extended; but on his suggestion, they thought it the more prudent course to commence with the limited provisions of the former treaty.

§ Lord Ashburton
could assure their Lordships that there was no part of the treaty, which had received their Lordships' approbation, that he looked to with more anxiety than its possible operation on the condition of slavery. It was a barbarous system that a malefactor by overstepping what was frequently a very narrow boundary between two countries, should escape punishment. He wondered it had lasted so long. We had the satisfaction of knowing that Mr. Jay's treaty had continued in operation twelve years, and no difficulty was found to arise under it. As to any difficulty that might occur with regard to the capture of slaves, it should be recollected that the slave-holding states were 300 miles distant from our territory. Besides, this question was now settled on 479 perfectly fair grounds; namely, that a slave once landing on any part of our dominions could never be claimed, nor his liberty be called in question; while, on the other hand, it was understood that no attempt at propaganism should be attempted by us within the territory of the United States. He had the satisfaction of knowing that since 1783 there probably never existed more amicable feelings than those which now prevailed between the two countries. And he was sure that all wise statesmen in this country would cultivate that feeling, and he trusted it would invariably mark our intercourse for the future.