§ Order of the Day for the Second Reading read.
§ The EARL of MALMESBURYmoved that their Lordships now gave the Second Reading to this Bill, and said that this Bill was intended to give the sanction of Parliament to a Convention which he had recently signed with the French Ambassador in London, of which the object was the 193 mutual surrender of criminals in France and England to the respective Governments of those countries. Up to the present moment, the two countries had not been placed on an equal footing in this respect; for the Convention made between the two Governments in 1843, whilst it enabled us to recover English criminals from Prance, did not give practically to Prance the same facilities for acquiring the surrender of their criminals from this country. The reason of the difficulty, as respected France, arose from the difference between their and our laws with regard to the powers given to magistrates to commit offenders for crimes perpetrated without their jurisdiction. There was a great difficulty in proving the identity of French prisoners on oath, and it was impossible for magistrates in this country to detain prisoners sufficiently long to enable evidence to be obtained from the other side of the Channel, to establish the identity of the persons apprehended. The consequence was, to place Prance in the condition of having only a negative Convention; so much so, that out of fourteen warrants which had been issued for the surrender to her of criminals by this country, no less than thirteen had miscarried, owing to the state of the law here. Thirteen of these criminals escaped; one only was surrendered, and that was owing to his having been apprehended in the island of Jersey. It was unreasonable to suppose that such a state of things as this, so unfair towards France, could continue to exist without remonstrance, and without some effort being made by the Government of that country to remedy it. The Convention to which he had alluded was made in the year 1843; and he believed that in 1845 the noble Earl opposite, then Secretary of State for Foreign Affairs (the Earl of Aberdeen), intended to improve that Convention, and that a deed was actually drawn up for the purpose. But, for some reason or other, the plan never came to maturity; and he (the Earl of Malmesbury) was informed, that from the year 1848, when the French revolution took place, no more notice was taken of the subject by the French Government until the present year, when the noble Earl who preceded him in the Foreign Department (Earl Granville) and the French Ambassador in this country prepared the Convention which he had recently laid on the table. This new Convention extended the number of crimes for which mutual surrender of criminals might 194 be made; and, in order that some security should be given against the surrender of political offenders to the French Government, especially since the events of 1848, the Convention also contained an article which he hoped would give those persons entire security from any attempt on the part of that Government to issue warrants for breach of municipal laws, but in reality for political offences. He must say, in favour of the French Government, that they had met upon this point with great frankness and openness; and he was authorised by the French Ambassador to declare that any article which the wisdom of Parliament or the ingenuity of our legal profession could invent or draw up that would positively secure political offenders from being surrendered, and prevent any use of the Convention that might fall upon political offenders, he was authorised to state the French Government would be ready to accept. It was for their Lordships to consider, therefore, in Committee, whether they could in any way add to the provisions proposed by the Bill for the security of political offenders; and whatever they in their wisdom might please to do, he should be happy to accept on his own part and on the part of the French Government. He was quite aware that improvements might be made, but it was a matter of importance that the law should not continue one-sided. The French Government had waited a long time in hopes of having a Convention which would act fairly for both parties; and if eventually they found it was of no use to them, whilst it did act properly for this country, they would naturally cancel the Convention altogether, and then we should lose the advantages we at present enjoyed, and which it was so desirable we should continue to enjoy.
§ Moved, "That the Bill be now read 2a "
§ The EARL of ABERDEENsaid, he was very much afraid that the noble Earl was not sufficiently impressed with the great difficulties incident to the subject which he had taken under his consideration. Had that not been the case, he would scarcely have proposed to read a second time such a Dill as this to-day, of the second reading of which he had only given notice yesterday. And even now he (the Earl of Aberdeen) feared this Bill could not receive that consideration from their Lordships which the subject so well deserved. The object which the noble Earl 195 had in view was no doubt most desirable—so much so, indeed, that it appeared scarcely credible that two countries, situated as England and France were, with such constant intercourse and communication, should have existed so long without some such provisions having been made as were proposed by the Bill on their Lordships' table. But their Lordships might imagine how great the real difficulty of this subject was, when he told them that ever since the peace of 1815 the two Governments had been in constant and frequent communication on this subject; and that nothing had been found possible, or at any rate practicable, to attempt until in the year 1843 he concluded a Convention with the Count de St. Aulaire, the French Ambassador to the Court of St. James's at that day. In 1802, during the peace of Amiens, an attempt was made at a Convention; but war having followed so shortly after, the Convention never came into operation. In framing the Convention which he concluded in 1843, he took for a precedent the crimes specified in the convention of 1802, namely, only the three crimes of murder, forgery, and fraudulent bankruptcy. It was perfectly true, as the noble Earl stated, that it had been found perfectly impossible to comply with the demands of the French Government for the surrender of criminals accused of those offences; while on the other hand the French Government, he believed, in every instance had found no difficulty in surrendering similar offenders claimed by this country. Clearly, therefore, some remedy for such a state of things was required. It was true, as the noble Earl had observed, that he (the Earl of Aberdeen) had tried to amend the Act of 1843 in the year 1845; but the noble Earl was mistaken in supposing that the proposition he had then made had not been carried into effect. The proposition passed into a law; but the only alteration that it made in the then existing state of things was to give the police magistrates of the metropolis power over French criminals, accused of these three different offences, over the whole of England, and which he was happy to see was preserved in the Bill now on their Lordships' table. He confessed he would rather see such a power placed in the hands of the police magistrates of the metropolis, than in those of the local magistrates throughout the country. He thought the security against abuse, which the existing law gave, was perhaps, if anything, too little. By 196 the present state of the law, the security given to the persons whose surrender was claimed, was, that they should only be surrendered "when the commission of the crime was so established that the laws of England would justify their apprehension and committal for trial if the crime had been committed in England." That provision was a perfect security to this extent, that the fugitive surrendered should not be delivered up without having all the protection given to him which would be given to an Englishman in similar circumstances. But by the Bill proposed by the noble Earl, be perceived that nothing was required but to establish the identity of the person claimed. Now, there could be no difficulty as to identification; and he entertained some doubt whether it was desirable that no other protection should be given than the mere mandat d' arret, which was no protection at all to the person accused, if the mere letter of accusation was to be considered as sufficient proof of the commission of the crime. He entertained some doubt whether such a provision ought to meet with the sanction of Parliament; at all events, it was a perfectly new principle if they were to require no proof but the mere accusation in order to justify arrestment and surrender. He threw out those observations for their Lordships' consideration; and he could not help saying that although the provision to which he had referred, as contained in the law at present in existence, was a proper provision, he admitted that some alteration was necessary to enable us to comply with the requisitions of the French Government. There was also another point to which he wished to draw the attention of the noble Earl. There were but three offences provided for by the present law; but the present Bill sought to apply the power to twenty different crimes, for all of which it was very proper that the offender should be brought to trial, provided there were some proof that the offences had been by him committed. But were their Lordships quite sure that nothing else would be attempted under this new provision than the apprehension of offenders accused of some one or other of these imputed crimes? The noble Earl had stated that the French Government were anxious to prevent any political offences from being taken cognisance of under the semblance of violations of the municipal law. But it was necessary that some law should pass which should give proper effect to 197 that desire. It appeared, also, that the Bill had reference to all such offences—to the number of twenty—as had been committed since 1843. Now he did not perceive the propriety of going back for a period of eight or nine years, instead of confining the Bill to a prospective operation. He had also to observe that although the noble Earl had said that the French Government would willingly agree to any alteration which would secure political offenders from coming under the provisions of this Convention, the noble Earl must be aware that any alteration of the Bill in that respect would almost of necessity make an alteration of the Convention. Having stated to their Lordships what occurred to him on the subject of the Motion before the House, he should not oppose the second reading of the Bill, though he looked at it with considerable apprehensions.
LORD BROUGHAMsaid, he entirely agreed with what had been said by the noble Earl who had just addressed the House, that this was a question upon which it was necessary to legislate. Nothing could be more clear than that it was scarcely consistent with the conditions of civilised society, that in two countries so closely connected by all the facilities which existed for perpetual intercourse, opportunity should be given for the escape of offenders who had committed the most atrocious crimes, merely by passing over the narrow channel which separated the two dominions. No doubt this subject was encumbered with many difficulties; and he happened to have the more knowledge of those difficulties from having frequently had communication with the French authorities here, in the hope of being able to devise some more effectual and satisfactory law than that which at present existed; but on all these occasions, the more they examined the subject, the more grave did they find those difficulties. For instance, if a charge was made against a man in France of having committed an offence in England, it was only necessary to take the English warrant to the French police, and to point out the offender, and he was at once given up. But it would not do in this country, when a person was accused of having committed an offence in France, to get a French warrant, and on finding him in England, to take him before a magistrate and say such a one was the party charged, and at once surrender him. In 198 this country we must, at all events, prove that the individual whom they called John a Noakes, was the John a Noakes described in the warrant; but then some primâ facie case must also be against him, and it became necessary almost to enter upon a preliminary trial, before he was handed over to the authorities in his own country to he proceeded against in due course of law there. Hitherto, on the arrest of a party in this country charged with the commission in France of one of the specified crimes, the practice had been to take him before a magistrate, and produce the warrant; but as the parties generally were notable to identify him, he could not be detained. But he (Lord Brougham) hesitated to give, on the production of a warrant, with merely a proof of identity, power for the arrest in this country of a French subject, and the consequent surrender of that individual to the French Government, and his expulsion from this country, to be tried in his own. Such a proposal appeared to him to require a good deal of consideration under various aspects before it could be sanctioned by that House. By the seventh article of the Convention it was provided that no person so given up should be tried for a political offence; and that if a person was given up upon any other charge, and taken over to France, and there tried for a political offence, the proof of his surrender under this Act was by virtue of the Convention to be decisive in his behalf, and he would be entitled to an immediate acquittal. Now, their Lordships ought to assume that an analogous and corresponding law to this provision in the Convention would be passed in France. A provision was made in the treaty that the Convention should not come into force until a day named by both parties; consequently, until a law was passed in France for giving effect to the provision in the seventh article to which he had just referred, Her Majesty's Government would not name a day for the Convention coining into operation. Suppose, again, that the law which should be thus made in France were afterwards repealed, persons arrested under the English Act on other charges might be tried in France for political offences, although, while the supposed French law continued in force, the articles of the Convention would save them from such prosecution. Then it was said, what chance was there of any foreign Government being so base as to arrest an indivi- 199 dual for a political offence under the pretence of arresting him for another offence, merely to get him into their power? That might be; but he thought some offences specified, such as fraudulent bankruptcy, left a large margin, within which persons might be improperly and unjustifiably arrested. He begged to bring under the consideration of the noble Earl a fact in the legislation on the other side of the Channel, where the Government always had what was called a "working majority," in the proportion of something like 242 to 3. He understood, while lately in Paris, that there was a Bill which, if it had not already been passed, would soon be the law of that country, and which contained an extraordinary provision. That provision was not at all confined to this country; it extended to all foreign States, but he would take the instance of this country. Not only might Frenchmen be tried in France for political offences committed by them in England, but their accomplices in those offences, being Englishmen, might also be tried in France. Nay, more—and he owned he was astonished to find it so—Englishmen, not charged as the accomplices of Frenchmen, but Englishmen themselves, without any accusation that they were in complicity with Frenchmen, might be tried in France for political offences committed by them in England, provided those offences were against the French Government, or, as it was called, against the public weal of France. He certainly saw that with extreme astonishment.
LORD MALMESBURYthought his noble and learned Friend was mistaken. The Bill which had now passed, was confined to Frenchmen.
LORD BROUGHAMsaid, that was the way in which the Bill stood when he last saw it, and he was now glad to hear it stated by his noble Friend that it was confined to Frenchmen, which till now he had never heard alleged. But it was only fair to the French Government to state that this was no new proposition; for if they looked they would find that Articles 5, 6, and 7 of the Code of Criminal Procedure contained provisions such as the one he had read to the House. At the time that law was passed, however, France was at war with England, and indeed with nearly all Europe; Holland, and Belgium, and Piedmont were part of her Empire, and the law, therefore, remained a dead 200 letter; but he had been alarmed to see the present opportunity taken for reviving and bringing into force such provisions, extending them also to cases of misdemeanour, and he was glad to hear from his noble Friend that the measure had undergone alteration in its progress through the French Legislature. It was only right he should add, that he had no reason whatever to doubt the perfect fairness of the French Government towards England in this matter, or to suppose that they intended to take any undue advantage of the law. But he confessed he greatly disapproved of the new law, even in the state in which his noble Friend stated it to have passed. It was the first time—except in particular cases, such as treason or murder, by the Statute of Henry VIII., slavetrading, and one or two other peculiar instances—that the great breach in the general principle of criminal law had been made: the principle that offences were to be tried in the country in which they were committed, and according to the laws of that country.
The LORD CHANCELLORsaid, he wished to make a few observations on the Bill before their Lordships. It seemed to be acknowledged on both sides of the House that something ought to be done to meet the just demands of the French Government. At present there were two Acts of Parliament in force on this subject, which practically gave to us all the advantages which could be derived from such a treaty, but which gave the French people no advantages at all. It was perfectly clear, therefore, that if we did not do what we ought to do in this matter, we should lose the benefits which we ought to enjoy from an arrangement of this kind. The observation of the noble Earl (the Earl of Aberdeen), that so many years had elapsed without any conclusion having been arrived at on this subject, rather tended to show that the present was a favourable time for attempting to remove the difficulty; for if for so many years it had been impossible to bring the two Governments into accordance on this question, and if they were now ready to come to an agreement in reference to it, this seemed to be the precise moment in which they ought to endeavour to take advantage of that happy concurrence of opinion. It had been justly objected to this measure that it was too severe to take a man up in this country and- carry him out of it merely on a warrant, and the simple proof of his identity. But when they tried to avoid that difficulty 201 in the Convention of the noble Earl near him (the Earl of Aberdeen), they failed in this respect—that in endeavouring to do what was constitutionally right to protect persons who claimed our hospitality and the protection of our laws, they did that which made the treaty a dead letter as regarded the French Government, because it could not be carried out in the way contemplated by the noble Earl (the Earl of Aberdeen). It was, however, most important in the case of two countries in such close proximity, and between which mutual relations of amity obtained, and in which such facilities for the easy escape of criminals existed, to endeavour to carry out such a measure fairly, and to sec what substitute they could find for that which had confessedly failed. Now the substitute required at the present moment was only a warrant and proof of identity, it was difficult to know where to stop when they once began to attempt to give security to a man who was to be seized and carried out of this country to be tried. Wore they to require primâ facie evidence of his guilt—for of course no one expected conclusive evidence? How were they to define the nature of the evidence which they required? Were they to insist upon having as much as would satisfy the magistrate before whom a man was brought as to the probability of his being convicted? But let their Lordships consider how very ineffectual any inquiry that could he then instituted would he to attain the end sought. He was as ready as any one could be to support any plan, if one could be chalked out, which would at once give fair security to the person to be given up, and satisfaction to the French Government. Great care had been taken, both in the Convention and in the Act, with respect to political offenders; but it would be impossible for us to step in between the French Government and their own subjects. We could prevent a Frenchman who was living under our care and dominion, from being improperly carried away to his own country to he tried; but when he had once been taken there, it was impossible to make any further provision with respect to his treatment than had already been done by this treaty, namely, by making a solemn stipulation with the French Government that he should not he tried for a political offence committed prior to his surrender, and that if he were so tried, he should be entitled to plead his surrender by the Eng- 202 lish Government under this treaty as a defence against the charge.
The LORD CHANCELLORsaid, that was a valuable suggestion of his noble and learned Friend. Their Lordships were now only upon the second reading of the Bill; and the Government would go into Committee upon it with an anxious desire to have the benefit of their Lordships' assistance in carrying out the object which they had in view. But what he wished to impress upon their Lordships was this:—the noble Earl (the Earl of Aberdeen) had said that we must expect this stipulation of the Convention to be carried out by a French law. Now he did not think that we could ask the French Government to pass a law which should be binding upon them, as between themselves and their own subjects. We bad no law, and we did not affect to have any intention of passing one, to prevent our trying an Englishman for a political offence if he was delivered up to us by Franco; and he did not think we could ask France to pass any such law. He admitted that this might not prevent the French Government infringing the treaty as regarded their own subjects; but that would, of course, be a breach of the treaty for which we should have a right to seek satisfaction in the manner used in such cases. He quite concurred in the noble Earl's observation that the retrospective clauses in the Act went too far. In former Acts the provisions were made prospective, or had received a retrospective operation back to 1848, the date of the noble Earl's treaty with France. In the present Bill, however—by an inadvertence, doubtless—the provisions were carried back to that period as to all the crimes enumerated in the present Bill; whereas it was clear they should only have been carried back as far as regarded the crimes enumerated in the former treaty, and not as regarded any new crimes which were introduced for the first time into the law. Upon the whole, he thought there would be no difficulty in amending the Bill in Committee, so that it should meet the approbation of their Lordships.
LORD CAMPBELLsaid, he was sure that their Lordships were all animated by an anxious desire to further this measure; but he must say that he felt some surprise at the novelty which had been introduced into the law of extradition in regard to 203 making the mere warrant or word of the complaining party conclusive with respect to the obligation to surrender the individual accused. The law of extradition was very ancient; it had been practically treated of by jurists; and had been practically observed between nations. Hitherto the invariable rule had been, that reasonable evidence of the guilt of the accused party should be given in all cases to the Government which was called upon to surrender a foreign subject; whereas it was now for the first time proposed to make the mere assertion of the Government that claimed the alleged criminal conclusive evidence of his guilt, and a sufficient warrant for our delivering him up to be tried in his own country. Now, it struck him as an extraordinary thing that no reciprocity in this respect had been proposed. His noble and learned Friend on the woolsack had asked them to say how the thing could be done. He (Lord Campbell) would say, let it be done in England as it was proposed that it should be done in Prance. It was not proposed that the warrant of the English Secretary of State or of an English magistrate should be proof positive and conclusive evidence of the guilt of the party whose extradition was required from France. According to the mode provided in the Convention, it was necessary in the case of an English subject claimed from France, that the Ambassador or other diplomatic agent of Her Majesty at Paris, should produce an authentic or legalised copy of a certificate of conviction or a warrant of apprehension for the person whose extradition was required, clearly setting forth the nature of the crime, accompanied by the description of the person claimed, and by any particulars which might serve to identify him:—
The Keeper of the Seals, Minister of Justice, shall examine the demand, and the documents in support thereof; he shall forthwith address a report thereon to the President of the Republic; and, if there be found due cause, a Presidential decree shall grant the surrender of the individual claimed, and shall order that he be arrested, and delivered up to the English authorities.The delivery on the part of the French Government was only to take place if there should appear to be good cause; and why, therefore, should they not introduce into the present Bill a clause, providing that a French subject should only be delivered up to the French Government, provided it should be made to appear to the Secretary of State for the Home Department, or 204 to some sufficient magistrate, that "due cause" had been assigned for such a surrender? To say that the mere warrant of the party making the demand should be held to be conclusive evidence of the guilt of the accused, would necessarily lead to abuse and oppression; and if this Bill passed, the result would be, that we should be bound to deliver up to the French Government any Frenchman in our dominions whose presence was wanted in France by that Government for any purpose whatever, upon the simple presentation of a document alleging his guilt.
§ The EARL of MALMESBURYsaid, there was a discretionary power given to the magistrate.
LORD CAMPBELLdenied that the magistrate would have any discretionary power. All he would have to do was to ascertain the identity of the individual claimed; and, having ascertained that, he was bound immediately to order the individual to be delivered up to the French Government. Now, this was a very dangerous mode of proceeding, and very liable to be abused; and he could not overlook the fact that extradition treaties, surrounded with greater precautions than this, had been abused. When he (Lord Campbell) had the honour of holding the office of Attorney General to Her Majesty, he was consulted upon the following case: Between the United States of America and the provinces of Canada there was a law of extradition, by which it was provided that there should he an indictment found against an individual before his extradition was demanded. There arose a case where an indictment was found against an individual in the State of Maine for horsestealing, and who had fled to Canada, and his surrender was demanded. It turned out that the man was a slave, who had run away from his master, and who had availed himself of a horse merely to facilitate his escape, and had not taken it animo furandi, for when he had got to the frontier, he sent hack the horse. His master immediately accused him of horsestealing, and obtained a conviction against him for that offence. His surrender was then demanded from the Governor of Canada; but proof of these facts having been given, he refused to comply with the demand; upon which the American Government remonstrated, and he (Lord Campbell) having been consulted as to the law of the case, at once advised the British Government to stand by the Gover- 205 nor of Canada, and insist that the man should be delivered up. Their Lordships would see from this the danger which was involved in being obliged to accept the mere ipse dixit of the accusing party as the ground for surrendering a foreign subject. How much greater danger was there that objectionable demands would be made under the present Convention, according to which extradition was to take place upon the production of a warrant and proof of identity? He trusted that this part of the Bill would be revised. He rejoiced to hear from his noble Friend opposite that that portion of the new law of France which would have clearly been contrary to the law of nations had been abandoned. As the law now stood, it was wholly unobjectionable; for since the time of Henry VIII., and even previously, we had always claimed and exercised the right of legislating with respect to our own subjects in foreign countries, and of bringing them to trial for certain offences—murder, piracy, and participation in the slave trade—-committed beyond our jurisdiction. We had, therefore, no cause to complain of the law, which had been passed by so large a majority of the French Assembly.
The LORD CHANCELLORsaid, that, although the phraseology of the Bill might not be exactly the same in reference to both countries, it was understood that there should be complete reciprocity between them; and that in the actual working of the French law we should have just the same facilities for the apprehension of our criminals there as we gave for the apprehension of French criminals here. The clauses had been framed with a view to attain this object; and if they did not, they could be altered. It was not the case, as his noble Friend (Lord Campbell) had contended, that we were absolutely bound hand and foot to deliver up any person demanded; for by the eleventh section of the Act power was given to the Secretary of State to stay and supersede any proceedings if the circumstances should appear to him to render such a course advisable.
The DUKE of ARGYLLsaid, that the great point upon which he and his noble Friends who had spoken were anxious was, that there should be sufficient security provided against a person demanded and surrendered under the plea that he was an offender against the criminal law, being afterwards tried for a political offence committed prior to his surrender. 206 The noble and learned Lord on the woolsack said that upon this point we must simply trust to the good faith of the French Government in observing the terms of the Convention; for that, as we did not propose to bind ourselves by any law on this point, we could not demand such a security from them. It appeared, however, to him, that we did bind ourselves by this Act of Parliament in the very manner which the noble and learned Lord said that we were not to expect from the French Government; for it was provided by the twelfth section of the present Bill, that—
No person surrendered by the French Government, under the said Convention, shall be prosecuted or proceeded against in the United Kingdom, or in any of the dominions of Her Majesty, for or on account of any crime or offence committed previously to his being so surrendered, except the crimes described in the said Convention, but shall be wholly released by such surrender from all prosecutions and proceedings in respect of any such previous crime, except as aforesaid: and in case of any prosecution contrary to this provision, such surrender shall be admitted as a valid defence, and evidence thereof may be given under a plea of not guilty.He thought that if this Bill passed, it would be the duty of the Government to see that the French Government bound themselves in a similar manner to carry out the Convention. With every feeling of respect towards the French Government, it was indeed impossible, looking to the rapid political changes which had taken place in that country, to feel that a decree of their Legislature could give a security equal to that which was conferred by an Act of the English Parliament. But still if a Convention was to be entered into at all upon this subject, we must take the guarantee of the French Government and Legislature as equivalent to our own; and our Government must therefore take care that the guarantees reciprocally given were as equal as possible. The number of the offences—he believed, about twenty—coming within the operation of the present Bill, and of course the greater number of minor offences included in it, afforded additional facility for the demand of persons who were in reality political offenders, under the pretence that they had been guilty of other crimes; for there were some of those enumerated offences which would very well apply to acts done in the course of an insurrection in that country. These were, however, points of detail for the consideration of the Committee; but they involved a very important principle, and if we were 207 to give up criminals without any proof of guilt, but on a simple accusation, he thought we were bound to see that the offences for which they were to be given up were definite in character, and limited in number.
LORD BROUGHAMsaid, that he thought the seventh article of the Convention implied that the French Government was to pass a law. It was as follows:—
No accused or convicted person who may be surrendered shall in any case be proceeded against or punished on account of any political offence committed prior to his being surrendered, nor for any crime or offence not described in the present Convention which he may have committed previously to his being surrendered; and proof of having been so surrendered under this Convention shall be a good and valid defence against any proceeding on account of any political offence previously committed, and shall entitle the party to an immediate acquittal.Now, if the French law resembled ours in the slightest degree, no convention, without the sanction of a law, could effect this.
The LORD CHANCELLORsaid, that no doubt the French Government would pass a law to regulate the affairs as between them and their own subjects. With respect to this point, too, he begged to observe that, in his opinion, nothing could be more just than that, if the French Government did not pass a law to carry out the Convention in the way referred to, we should strike out the corresponding clause in our Act of Parliament.
§ The EARL of HARROWBYmade a few observations, which were inaudible.
§ LORD CRANWORTHsaid, that he felt some difficulties with regard to the Bill, which had not been removed by what had fallen from his noble and learned Friend on the woolsack. It was said that they were now discussing only the second reading of the Bill, and that all that they were now called upon to do was to affirm its principle. That was perfectly true; and if he could see his way by any possible means to make the Bill tolerable, that might be a very good reason for agreeing to the second reading. If they had only to consider a Bill containing clauses which had for their object to provide for the extradition of criminals, they might know how to grapple with it, although it might involve difficulties; but what they were called upon to do was to legislate for the purpose of carrying into execution a specific treaty which appeared to contain in it stipulations and terms which were inadmis- 208 sible; and he knew of no power by which they could legislate so as to modify the terms of a treaty. The subject was a difficult one, but he thought he could see his way to a mode of dealing with it. His noble and learned Friend said, that there were great difficulties in the way of insisting upon a sufficient foundation warranting the delivery of criminals. He (Lord Cranworth) thought, however, the ordinary exigencies might be easily provided for. Suppose, for instance, that instead of a simple warrant, which, by the terms of the present treaty, was made sufficient, we required the depositions taken before the proper authorities in France to be laid before our magistrates, showing a prima facie case that the party had been properly accused? There might be difficulties in that; but he thought they might grapple with them, and so modify them as to meet the exigencies of the case. How could they, however, by any legislation which they could adopt by any proposed Act of Parliament, get out of this provision in the treaty, that the warrant for apprehension, or mandat d'arret, when legalised by the Ambassador or other diplomatic agent of France at London, should be considered as proof positive for the purposes of extradition, that the individual therein named had been convicted or was lawfully accused of having committed a crime cognisable by the French tribunals, and was thereon to be given up? If they could not escape that difficulty—and it seemed to him insurmountable—he thought they ought not to give this Bill a second reading.
§ The EARL of MALMESBURYsaid, that he had not at all underrated the difficulties attendant on passing this measure. The noble Earl opposite (the Earl of Aberdeen), who appeared to think that he had not considered the difficulties of the case, might with greater justice have said, if he had occupied their Lordships' time by a lengthened statement, that he (the Earl of Malmesbury) was something more than conceited in attempting to obtain an object which the noble Earl, with all his great experience, had failed in. He had, therefore, first presented this Bill to their Lordships, preferring rather to do so than to introduce it in the first instance into the House of Commons, because he knew that their Lordships had the honour of numbering amongst them some of the most eminent lawyers in the country, and to their assistance he trusted for rendering the measure efficient. He agreed with the noble and 209 learned Lord who spoke last, that if direct proof of the crime was looked upon as necessary before a person accused was delivered up, this would form an insuperable objection, and it would be impossible to go on with the Bill.
§ The EARL of MALMESBURYIt was on that point that the whole of the existing difficulty had arisen. It was be-cause it was impossible to have a previous trial of the accused party in this country that the French Government, as the law stood, could never succeed in obtaining the surrender of any of their criminals here. It struck Her Majesty's Government that it would be sufficient if discretion were given to a magistrate to surrender a criminal upon sufficient, though it might not be direct, proof of identity; particularly as, by this Bill, a power (which did not exist under the present law) was given to the magistrate to remand a man for a month in order to give time for the investigation of the case, and to see that as far as possible he should receive fair play. His conviction was, that if they tried to obtain more, they would have the same difficulties with France as under the existing treaty; and the consequence would be that the Convention would become a dead letter: the French Government would cease to attempt the extradition of English offenders; our criminals would escape to France, and in return for them we should have a quantity of French rogues come to this country, of whom we should not find it easy to get rid. To show the different views with which these subjects were regarded in France, he might mention that he had some difficulty at first about the clause that secured political offenders; not, he believed, because the French Government wanted to obtain offenders by any trick—for he believed them to be perfectly sincere—but because they thought it possible that many of those who were remaining here—under a charge of high treason, for instance—might purge themselves of that by getting some friend on the other side of the Channel to charge them with some small offence cognisable under this convention; and having been then taken over to France on that charge, they would thus be secured against prosecution for any more serious offences which they might have committed during one of the revolutions. The French Government, had they been desirous to interpose difficulties, 210 might very well have pressed that point, and have said that it had in it the germs of too unrestrained a liberty; because, under the Convention, the offender would only have to be accused of some minor offence, which would occasion him to be taken to France, and he would be exempted for over from all accusations standing against him for more serious crimes, committed, it might be, during the revolution, he did hope, therefore, seeing the great necessity for two civilised countries carrying out some Act of this kind, that their Lordships would aid him to effect this object, He did not wish to take the slightest credit to himself for having brought this Bill forward. It was a matter of necessity, and had been considered at the Home Office for the last two months with very great attention. He begged now that the House would read the Bill a second time; and he should be greatly obliged if, in Committee, the noble and learned Lords opposite would give him their assistance to secure the ultimate passing of the measure in as fair and perfect a shape as possible.
LORD CAMPBELLassured the noble Lord that he, for one, should be ready to give him every assistance, both in the House and out of it. But how could they alter the Bill? Were they to say that the warrant was not to be held as sufficient ground for the extradition, but that there should be reasonable evidence before the Secretary of State that the offence had been committed? If that were to be so, it struck him that there must be a new Convention; and then, upon that new Convention, they could pass a law to give validity to it.
The LORD CHANCELLORsaid, they certainly could not alter the Convention; but it could not be carried into effect except so far as an Act of Parliament gave authority to it, They could therefore give or withhold the power to carry the Convention into effect, and he apprehended that the Bill might be so modified as to meet their Lordships' views. The French Government might then make their election, whether they would consent to a fresh Convention to meet the provisions of the Act as passed, or would reject the present Convention as not being enforced by the authority of the Act. If, on the other hand, his noble Friend were now to enter into a sub-convention to meet the views of their Lordships present, what security was there that that sub-convention 211 would in other respects be received with more favour than the present one?
§ EARL GREYsaid, if he had read the Convention correctly, it did not come into force until a day to be declared by the consent of both parties. Of course both parties could abstain from naming that day until the terms were finally settled. Therefore, if Parliament passed an Act limiting, as he thought they should do, the power now proposed to be taken of giving up prisoners claimed by France, the two Governments might, before the day fixed for the Convention taking effect, agree to a supplemental convention, conformable to the terms of the Act of Parliament as it should be passed. He thought that in this way the difficulty might be surmounted. He had risen, however, to express his entire concurrence in the opinion that the Bill ought not to pass in its present shape. He was anxious, as all their Lordships were, that effectual means should be provided for the mutual surrender of prisoners between two great countries like Prance and England; but he conceived that a mere statement from the authorities of Prance that a person had been accused of a crime was not sufficient to warrant his surrender; but that the magistrate ought to have some such evidence as was considered necessary before committing a prisoner for trial in this country. If he were not mistaken, a similar principle was acted upon between Canada and the United States; and he could not understand why a principle which worked fairly and well between England and the United States should not work equally well between England and France. If additional powers of remanding a man after he was once taken were required until the evidence could be completed, he saw no objection to that. They could not let a French criminal escape through a paltry technicality; let them enlarge, if they liked, the powers of remand, but do not let them give a person up without some primâ facie evidence that he had committed the crime with which he was charged. He did not wish to say anything distasteful to the French Government; but in the present state of that country, increased caution was necessary in dealing with a subject of this nature. He thought the proposition which had been made by the noble Earl opposite was perfectly fair—that they should now agree to the second reading, with the full understanding that the Bill should be so amended in Committee as to guard against 212 the reasonable objections which had now been taken to it.
§ The EARL of ABERDEENsaid, that the provisions of the existing law carrying into effect the Convention of 1843, precisely secured that which the noble Earl (Earl Grey) wished, namely, that the surrender should only be made when the commission of the crime should have been established in such a manner that the laws of the country where the fugitive or person so accused should be found, would justify his apprehension and committal for trial if the crime had been committed in that country. In point of fact, he believed that that was very much the provision of the convention between the United States and Canada, where it had been found to work well. It was so long ago that he could not speak with perfect accuracy; but he rather thought that in the Convention of 1843 he had adopted the very words of the provisions of the law regulating the surrender of criminals between the United States and Canada. It was clear that that was precisely what the noble Earl wished. Under that Convention France had no difficulty in surrendering our offenders; but it had been found impracticable in this country, and we had not surrendered one criminal to France. As to a supplementary convention, that was a very awkward mode of proceeding. The Convention was final; it had been ratified by Her Majesty; they could not possibly alter the words of the Convention, although they might enter into a new one. The Bill professed to be a law to carry that Convention into effect. In fact, the Convention was recited verbatim in the Act itself, and he hardly knew how they could proceed to a new Convention, and at the same time pass this Act.
LORD BROUGHAMsaid, that in Count Jarnac's time, and, in fact, ever since the Convention had been agreed to, the attempts to carry it out, as far as French offenders were concerned, had been frustrated by the difficulty of bringing over witnesses from France; and therefore he thought they ought to take into consideration the very valuable suggestion of his noble and learned Friend behind him (Lord Cranworth) as to the production of depositions, for it would be almost impossible to bring the witnesses over to substantiate a charge against a prisoner. The question now was, whether they should agree to the second reading, and try and get over the difficulty in Committee by framing some 213 clause with respect to the depositions to be laid before the Secretary of State, on which he should act under the Bill as it now stood, and allow his warrant to be issued.
§ LORD STANLEY OF ALDERLEYsaid, as far as he understood, there was no difficulty in putting into operation the Act affirming the convention between the United States and Canada. The surrender of criminals was obtained on both sides without any difficulty. He therefore begged to ask the noble Earl (the Earl of Malmesbury) what difference there was between the position of France and England, and that of the United States and Canada, which prevented France having the same facilities as the United States for obtaining the surrender of prisoners?
The EARL of MALMESBURVthought the noble Lord was better enabled to answer that question himself, because he possessed some experience on the subject; and it was, in fact, one of his own Colleagues who took an active part in carrying the convention into effect. He agreed with the noble Lord opposite that the question of remand was a very important one. One of the principal reasons why we had failed in surrendering prisoners was, that our magistrates had no power to remand for a sufficient time to enable the identity to be proved—consequently the accused was let go, and there was no chance of securing him again. All be wished was to improve the law as it now stood, and he wanted to know what power their Lordships would give him, and then he would be enabled to treat with the French Government. It should, however, be recollected that they were now legislating for the French, not for themselves, for we were satisfied with the Convention as it stood; but Her Majesty's Government were afraid of losing that Convention, and it was on this account they desired to satisfy the French by putting them on an equal footing to ourselves. If the Government knew what power they possessed for framing the Act, and on what ground they might propose a new convention, then they would be in a condition to act, and it would be for the French to accept or to refuse the terms proposed; for they, in fact, were the only persons to complain.
LORD CAMPBELLwas sure they all earnestly desired to assist the noble Earl; but the question was, could they go on with the Bill? He was clearly of opinion they could not. It was contrary to the 214 title of the Bill to alter one iota of the provisions, for the Bill was to carry into effect a specific Convention between Her Britannic Majesty and the French Republic, and if they proceeded with it, it must be without alteration.
§ Bill read 2a; and committed to a Committee of the whole House.
§ House adjourned to Thursday next.