ADJOURNED DEBATE RESUMED.

HL Deb 03 August 1876 vol 231 cc371-414

Adjourned debate on the Motion of Earl GRANVILLE—"That an humble Address be presented to Her Majesty for further Correspondence respecting Extradition," resumed (according to Order).

THE LORD CHANCELLOR

My Lords, I have to express my great obligation to your Lordships for your indulgence in permitting me to-night to resume the discussion of this question. I shall endeavour to show my gratitude by compressing, as far as the importance of the subject will permit, the remarks I have to make. I think I shall make my observations more distinct if I remind your Lordships at the outset that there are connected with this subject two questions which are perfectly separable the one from the other. The first is whether upon the subject of Extradition there ought to be a new Treaty made between this country and the United States, and what should be the character of that Treaty; and the other is whether Her Majesty's Government, in executing the Treaty which exists and the powers which they possess, have properly interpreted their duty. The importance of keeping these two questions distinct was, I think, clearly manifested during the debate the other night. The noble Earl who introduced the Motion (Earl Granville) stated very fairly that he did not propose to enter into the question of a negotiation for a new Treaty, but he would confine himself entirely to what had already occurred; but your Lord ships will recollect that a noble Earl who is not now present (Earl Grey), in addressing himself to the subject, scarcely bestowed a word upon the conduct of the Government in reference to what has already passed, but, with great point and ability, addressed himself to the general question as to what, according to his judgment, ought to be the character of the Extradition arrangements between two such countries as Great Britain and the United States. Upon one of these questions I do not propose to say more than a single word. The subject of the arrangements to be made for the future is one which may now be taken to be under negotiation. Her Majesty's Government have informed the Government of the United States that they are prepared to enter upon that negotiation without any bias and without any prejudice arising from the correspondence which has passed between, the two Governments. I am perfectly willing to confess there are many points in respect of which the arrangements between the two countries may be improved; and I think I shall have the assent of all your Lordships when I say this was a question upon which the interests of Great Britain and of the United States are not only not antagonistic, but are absolutely identical. Have heard some calculations made as to the relative advantages which an Extradition Treaty bestowed upon the two countries; but I cannot see any difference whatever between the advantages to one country and to the other. I have seen it stated that you ought to take into account and compare the probable number of criminals which each country will have to demand back from the other. If we were able to ascertain that there were two countries, one of which would require the surrender of 10 and the other the surrender of 100 criminals, still I should maintain that the interests of the two countries were entirely identical. Of course it is the interest of a country to obtain the surrender of a criminal, and to put him on trial for the offence which he has committed; but I maintain that it is equally the interest of the country of which that criminal, if he be a criminal, has made an asylum to get rid of his presence. The country in which he has taken refuge is in this position—it cannot try him for the offence he has committed abroad, because it has been committed out of its jurisdiction, and it cannot have his presence without danger of the recurrence of the crime in consequence of which he has been obliged to take refuge.

Having stated that, I now come to what really is the grave question raised by the noble Earl—I mean the course which the Government has taken in the late negotiations with the United States. It is extremely important to bear in mind, in a matter of this kind, what the position of the Government is. Primâ facie every person who takes refuge in this country, who makes this country an asylum, has a right to remain in it, and cannot be removed from it. But the Government of this country is made by the Legislature the depositary or trustees of certain powers, by the exercise of which that individual may be handed over to the country from which he has originally come. It is the duty of the Government to construe those powers accurately, and to execute them up to the letter of their power, and the Government have no authority to go one jot beyond the power which the Legislature has entrusted to them. What the powers are which are entrusted to the Government must, of course, be determined by looking at the nature of the authority which the Government has received, and it is upon the construction of that authority that the difference in the present instance has arisen. Let me remind your Lordships what are the two constructions which have been placed on the powers given to the Government of this country with reference to the extradition of persons alleged to be criminals. The construction which was placed by the noble Earl (Earl Granville) upon the power of the Government is this—the noble Earl, adopting the argument of the Government of the United States, contends that there are certain crimes for any one of which the Government of the United States may require the surrender of a criminal who is within this country. The noble Earl says the person must be accused of the crime, and evidence must be given which would justify his committal in this country; and if such evidence be given he is to be handed over to the United States; but once he is handed over to the United States the noble Earl contends it is in the power of the United States and the Courts of that country, provided they go through the form of trying him in the first instance for the offence for which he is surrendered, to try him afterwards for any offence greater or smaller which may be alleged against him. That is the construction which the noble Earl puts upon the duty and the authority of the Government of this country. On the other hand, Her Majesty's Government put this construction on their authority—they say they are ready to entertain the demand for the extradition of any person alleged to have committed any of the offences mentioned in the Treaty; they are ready to hear evidence of the criminality of the person; and if the evidence amounts to that which would justify a magistrate in committing that person for trial in this country, he is to be handed over to the Government and the Courts of the United States; but he is to be handed over to be tried for that offence only, and if acquitted of that offence he is not to be tried for any other offence he may have committed. That is the issue between us. It appears to me a very simple one, and I think I shall be able to satisfy your Lordships—not by any legal arguments, but by the application of common sense to the construction of common words, that the construction which Her Majesty's Government have placed on their duty is the true and correct construction. My Lords, before I come to the Treaty which exists between this country and the United States I desire to make a few observations. The noble Earl (Earl Granville) said the other night with great accuracy that the extradition of criminals or alleged criminals was founded upon the comity of nations. Extradition is not an obligation created by Treaty. It has been regulated and moulded by certain countries through the medium of Treaties, but properly speaking it is founded upon the comity of nations, upon principles higher and broader than ever can be laid down in any Treaty. My Lords, it so happens that Great Britain and the United States have been rather lagging behind on the matter of Extradition. Extradition was known for years before any Treaty existed between this country and the United States; and when a Treaty came to be made between this country and the United States it was made in order to supplement the power of the Executive Government, and not for the purpose of introducing any greater laxity into the general principle of Extradition. Now, my Lords, what are the rules laid down with regard to Extradition in those countries where it has prevailed much longer than in this country and the United States? Nay, what is the cardinal rule on the subject of Extradition? I have consulted the great jurists who have written on this subject on the Continent, and I will now lay before your Lordships what has been said by one of them who wrote not very far distant from the time when the Treaty was made between this country and the United States. I take the treatise of Fælix on Private International Law, in which an entire chapter is devoted to the subject of Extradition. The author enumerates all the Treaties which at the time he wrote existed between the different countries on the Continent; but he lays down as higher and older than any of the provisions in any of those Treaties certain general rules which he says are implied in the whole question of Extradition, and which govern it in all countries at all times. And this is one of his general rules— The person who is surrendered cannot be prosecuted or condemned except for the crime in respect to which his extradition has been obtained. My Lords, is there any doubt about the meaning of those words? The rule is not that he must be tried first for the crime on which he has been surrendered, and that then he may be tried for any other, but that he must be tried for the crime on which he has been surrendered, and for that crime only. And, my Lords, what is the practice observed in France? The Minister of Justice, in a circular dated the 15th of April, 1841, lays down the following rules on the subject of Extradition:— The extradition declares the offence which leads to it, and this offence alone ought to be inquired into. So that if during the prosecution for the crime which has led to the extradition there should arise the evidence of a new crime, a new demand of extradition ought to be made. But, my Lords, that is not all. In a book with which some of your Lordships are well acquainted, Dalloy's Jurisprudence I find a remarkable case in point which occurred between France and Geneva. A man of the name of Dermenon had been surrendered for trial for fraudulent bankruptcy. He was acquitted on that charge; but there was another against him for which he had not been surrendered. Then this is what I find— The Procureur-Général to the Royal Court of Dijon asks whether he must be brought before the Tribunal of Correctional Police of that city or sent back to Geneva to be placed at the disposal of the Government which has surrendered him. The Keeper of the Seals thinks that the later alternative should be adopted. The letter written by the Minister of the Interior to the Prefect of the Côte ďOr to inform him of his decision runs thus:—'It is only as accused of the crime of fraudulent bankruptcy that Dermenon has been delivered up to France by the Canton of Geneva. He is now purged of that charge by the decree of acquittal. Dermenon is therefore in the same position as if only a misdemeanour had been laid to his charge. It is clear that in that case his extradition could not have been obtained. It follows that we cannot take advantage of his having been given up to the French authorities upon a different ground to try him for acts which have not and could never have been the grounds of his extradition. The Minister of Justice has consequently directed the Procureur-Général to place Dermenon at your disposal, and I hasten, for my part, to request you to have him conducted immediately to the frontier, where he should be placed once more in the hands of the Genevese authorities.' That is pretty strong as to the principle on which France proceeded—a principle which forms the foundation of Extradition and does not depend on the mere wording of any Treaty whatever. But is France alone in this matter? I turn to a jurist of Holland, Kluit, who has written a very interesting treatise on the Surrender of Fugitives, in which he says— Is it lawful to punish the fugitive for any other crime than that for which he has been surrendered? The request for the surrender of a criminal is generally accompanied by a statement of the grounds on which it is made. The State in which he has taken refuge ought not to surrender him until those grounds have been made clear to it; in other words, it should ascertain whether the crime committed is of a character to justify his surrender. In truth, the criminal by his flight to another State becomes (although but for a time) the subject of the supreme power of that State, and immediately enjoys the protection and guardianship of that State. From that guardianship he cannot be forcibly taken except under a special agreement, the terms of which, we presume, certainly do not extend further than to those very grounds on which the surrender was demanded and granted. Therefore, if a State were to demand the extradition of a fugitive for a given crime, and then, letting the charge of this crime drop, were to bring him to trial and inflict punishment on him for some other crime committed by him, the mutual confidence existing between the two nations would be seriously impaired by an extradition demanded in so dishonest and underhand a manner. The surrendering State could not, indeed, though rightly maintaining that it had suffered an injury, at once do anything to prevent the perpetration of this fraud—for it would be absurd to fly at once to arms—yet it appears that it could fairly demand, through the medium of its Ministers representing it in the country of the other State, that the injury should be repaired —as, for example, by sending back the surrendered criminal; and in such, a case it will be quite fair that all extradition shall be consistently refused to the offending State for the future, so that no handle may be given to unjust Persecutions.…And even if it be not fraud, but only carelessness, that leads to a State, after demanding and obtaining the surrender of a criminal, to bring him to trial on some other charge than that for which he was surrendered, such a proceeding should not on that account bypassed over. The surrendering State gave up the criminal on consideration of the grounds stated, not of any different grounds. It may be alleged that it was a fair presumption and argument to say that the surrendering State would have been likely to surrender with much greater willingness a man accused of more crimes than one than a man accused of one only. But, on the other hand, it is a fair observation to make that that State might have declined to grant the surrender had it known that the other State would bring the criminal to trial on such a charge. Because it surrendered a man accused of incendiarism or murder, it must not be presumed that it would be equally willing to surrender one for political reasons, for persecution on account of religion, or for any trivial infringement of the law." Finally, I turn to a German writer, Heffter, who states— The individual whose extradition has been granted cannot be prosecuted or tried for any crime except that for which the extradition has been obtained. To act in any other way, and to cause him to be tried for other crimes or misdemeanours, would be to violate the mutual principle of asylum and the silent clause contained by implication in every extradition. Now, my Lords, I think these authorities—and they might be multiplied—will satisfy your Lordships that apart altogether from the wording of Treaties, there is a silent and implied condition in Extradition that the crime for which the surrender of a man is: asked must be specified, and that it is for that crime alone that he must be tried. I am absolutely unaware of any authority who has ever written the other way. So much for the general principle. Until I hear the contrary, I think I am entitled to ask your Lordships to hold with me, that it is the general principle of Extradition that a man is to be tried only for the offence for which he is surrendered.

I now come to the Treaty of 1842 and to the British Act of Parliament which gave effect to it. I take the Treaty first. What does it provide? It embraces certain offences—namely, murder, assaults and attempts to murder, forgery, the uttering of forged paper, piracy, robbery, and arson. It takes those seven offences, and authorizes a demand and a surrender by way of Extradition of any person who is accused of one of these offences provided—I speak, of course, with regard to this country—the evidence given amounts to that which, according to British law, would justify a person's being committed in this country for trial. I ask what is the reason why seven offences out of the whole catalogue of crime are singled out, and why, also, there is this provision made—that the evidence given must be such would show a primâ facie criminality according to British law? What is the theory which would explain why this provision was made in the Treaty? I listened with some anxiety to hear whether the noble Earl had any theory on this point. I have heard two theories—one suggested by the noble Earl and the other suggested elsewhere. I have seen it said that the reason why the Treaty provides that this evidence of criminality according to British law is to be given is merely to guard against arbitrary arrests. But that is no answer at all, because it does not explain the reason why seven crimes are singled out. If the only object was to guard against arbitrary arrest, it would be sufficient to say that a man may be surrendered for any crime whatever, provided there is primâ facie evidence according to British law. But the suggestion of the noble Earl is that those seven offences only are taken because the object was not to invoke that cumbrous administrative machinery of the two countries and put it in motion for anything except large and considerable crimes? But I ask him are these seven the only large and considerable crimes? What does the noble Earl say to embezzlement, or to obtaining money under false pretences, or to manslaughter, or to rape, or to abduction—and I might name many others? None of these are mentioned in the Treaty—no provision whatever is made for them; and therefore, they being as considerable as the crimes that are mentioned, it cannot be that the object was to avoid the trouble of putting this cumbrous machinery in motion for insignificant offences. Now, I venture to give my explanation. The reason why the Treaty was framed in this way is a very simple one. It is that these seven offences are agreed upon between the two countries as the delicta majora, about which there could be no dispute, no controversy, as to whether they trench on political considerations or not. They are singled out and taken, as the only crimes for which Extradition is to be permitted; and evidence is to be given which shall show that the particular crime had been primâ facie committed according to British law in order that this country when it surrenders a person who is alleged to be a criminal may know beforehand what is the crime, and the only crime, for which he is to be tried, and what is the character of that state of facts which is said to lead up to and indicate that it has been committed. And the moment that you pass from the offences named in the Treaty, and the evidence in support of those offences, and say that afterwards the person surrendered may be tried for any other offence, you absolutely reduce to silence the whole of the provisions in the Treaty. For what is the object of specifying one offence, and being made the judge of the evidence with regard to it, if after his trial for it—which may be a more formality and result in an acquittal, and show that he ought never to have been accused of that offence at all—he may be tried in the country to which he is surrendered for any other offence they may please to lay at his door? I may here quote one of the highest authorities in dealing with the subject—namely, the President of the United States. President Tyler communicated his Treaty by the Message to Congress. In a Message to the Senate he gave this explanation of the character of the Treaty. He said— The Article on the subject in the proposed Treaty is carefully confined to such offences as all mankind agree to regard as heinous, and destructive of the security of life and property. In this careful and specific enumeration of crimes the object has been to exclude all political offences or criminal charges arising from wars or intestine commotions. Treason, misprision of treason, libels, desertion from military service, and other offences of similar character are excluded. What is the use of excluding them if, after a surrender for any one of the offences named, the person may be tried for these other offences? Here is the Message of the President of the United States explaining the Treaty that was entered into, and explaining it in a sense which at once sweeps away the whole of the theory that a person can be tried for anything except what are called the crimes specifically enumerated—because if he could be tried for any one of the other offences the guarantee and safeguard on which President Tyler relied would be entirely removed.

So much for the Treaty. As far as this country is concerned, it does not rest merely on the Treaty. I find that Lord Ashburton, who negotiated the Treaty, on the 9th of August, 1842, wrote to MR. Webster and told him—what all your Lordships know—that, although the negotiators had agreed to this Treaty, it could have no force against this country, except by the authority of Parliament, and therefore that the authority of Parliament must be obtained. Therefore, whatever terms the Parliament of this country imposed in the Act by which they gave their assent to the Treaty became part of the Treaty and govern its execution. What does the Act of Parliament which was to give it vitality, and which was passed in 1843 say? Your Lordships will observe that the form was this—that Parliament had to give to the Executive of this country power, which otherwise the Executive would not possess, of handing over the persons who were surrendered. No Secretary of State could issue a warrant or arrest any person in this country to be handed over to the United States, except by the authority of Parliament, and therefore Parliament had to ratify the Treaty and give authority for this particular act to be done. What is the language in which Parliament gave this authority? This is the third section of the Act, and it does not require a lawyer to construe it. It says, upon the certificate of the justice of the peace that the supposed offender has been committed to gaol— It shall be lawful for one of Her Majesty's principal Secretaries of State. by warrant under his hand and seal to order the person so committed to be delivered to such person or persons as shall be authorized in the name of the United States to receive the person so committed to be delivered to such person or persons as shall be authorized in the name of the said United States to receive the person so committed, and to convey such person to the territories of the said United States"— What for?—to be tried for all offences whatsoever? No, but— to be tried for the crime of which such person shall be so accused." [6 & 7 Vict. c. 76. s. 3.] That is the authority which Parliament has given to the Secretary of State. Parliament has given no authority to the Secretary of State to hand over any man within the asylum of this country to be tried for all offences whatsoever. The authority, and the only authority, given to Her Majesty's Government is, after evidence given showing a primâ facie case of criminality as regards the particular offence, that of handing over a person to the United States to be tried for the crime of which such person shall be so accused. It is sometimes said that lawyers are given to special pleading. I am sorry to observe that the special pleading on this subject has not come from lawyers. I have seen it stated—and the argument of the noble Earl (Earl Granville) the other night requires him to maintain this proposition—that because there are no negative words, saying that he is not to be tried for any other offence, therefore he may be tried for any other offence. I should like to know, in regard to documents passing between man and man within this country, what would be thought of an argument like that? Suppose anyone of your Lordships handed over a sum of money to a trustee and told him it was handed to him that he might invest it in a particular security—Consols. If the trustee said—"You told me I was to invest the money in Consols, but you did not say I was to invest it in nothing else. If I have invested the money in Consols, I can then invest it in any other securities I please." What, I ask, would be thought of that doctrine? The words here are clear. The person is surrendered by the Act of Parliament to be tried for the offence of which he is accused, and so far as he is concerned, our duty is to protest against his being tried for any other offence. But, my Lords, I may go further, and refer to the circumstances under which the Act of 1843 was passed. The Act was not passed through Parliament in silence; it was fully debated in both Houses at the time. Those were the times when the Members of the great Liberal Party were peculiarly sensitive about the liberties of those who had received the hospitality of this country; and they were careful that no power was given or should be exercised which might unduly endanger those liberties. I have read the most striking speech of Lord Macaulay on the subject, which is contained in the Reports of the proceedings of the other House of Parliament, and also that which was delivered by Lord Aberdeen in this House, both of which were directed against the criticisms to which the measure had been subjected. [See 3 Hansard, lxxi. 564.] At that time slavery was an institution of the United States, and great apprehension was felt here that persons might be surrendered here for offences mentioned in the Treaty, and be subsequently tried in America for offences connected with their status as slaves and those who were defending the Treaty in both Houses of Parliament took one by one the offences for which persons were to be surrendered, and asserted that none of them would allow any person to be put on his trial for an offence committed as a slave. But, my Lords, if Lord Aberdeen in this House, and Sir Robert Peel in the other, had adopted the construction placed upon the Treaty by the noble Earl they would have said—"It is no use embarrassing yourselves about the effect of the particular offences named in the Treaty, because we candidly tell you that if once a man is surrendered under the Treaty, he can be tried for any offence whatever, whether arising out of his status as a slave or not." My Lords, had any Minister made such a statement as that in either House of Parliament in 1843 do your Lordships suppose that this Treaty would ever have received the assent of Parliament? But there is another matter which is of considerable importance in considering this case. The other night the noble Earl objected to any reference being made to the American Act of Congress passed in 1848, stating that the Americans themselves were the proper judges of the construction to be put upon their own Act. That view might perhaps be open to criticism, inasmuch as the Act of Congress is practically a transcript of the English Act, and may fairly be taken to have the same meaning. I will not, however, enter into any debateable ground upon this question which I can avoid, and therefore I will pass over the point as to what construction should be placed upon the Act of Congress. I must, however, refer to an American document which becomes of the utmost importance when we are construing the meaning to be placed upon the Treaty. I will ask your Lordships to allow me to read the warrant under which the United States surrender a prisoner to us. It is to be found in pages 69 and 70 of the Papers which have been laid before the House. This is the document which accompanies the prisoner when we receive him from the United States, and it contains the instructions which tell us what we are to do with him. The document is a very important one, and seems to my mind to be almost conclusive of the case. It is as follows:— Now, therefore, pursuant to the provisions of Section 5272 of the Revised Statutes of the United States, these presents are to require the United States Marshal for the Eastern District of New York, or any other public officer or person having charge or custody of the aforesaid James Bowen, alias William Miller, to surrender and deliver him up to Adam Bligh, a constable of the united counties of Stormont, Dundas, and Glengarry, Canada, who has been authorized, in the name and on behalf of the British Government, by Her Majesty's Minister at this capital to receive him, or to any other person or persons who may in like manner be authorized, in the name or on behalf of the said Government to receive the said James Bowen, alias William Miller, to be tried for the crime of which he is accused."—[N. A. No 1 (1876), No. 153.] Therefore we have on the one hand the British Parliament authorizing the Secretary of State "to hand over the person to be surrendered from this country to be tried in the United States for the crime for which he is accused, "and we have on the other the Government of the United States issuing their warrant for the handing over to the officer authorized by Her Majesty to receive him in the United States a prisoner "to be tried for the crime of which he is accused. "Both countries, therefore, use the same words, which can only fairly admit of one interpretation. So much, therefore, for the general principles which regulate the system of Extradition and for the documents which pass between the two countries, and which constitute the means by which it is carried into effect. The noble Earl (Earl Granville) referred to a great many cases which have occurred since 1842, and said that he had got the evidence of public men and the evidence of witnesses which would show that the meaning which had always been placed upon the Treaty was different from that for which we contend. I can very shortly indeed put your Lordships in possession of all that appears to me to be material with regard to the cases that have occurred. By far the greater num- ber of the cases cited by the noble Earl I put aside altogether as irrelevant. In that class of cases to which I refer, the prisoners who had been surrendered on one charge and who were being tried upon another themselves attempted to raise the defence that they could not be tried for an offence different from that for which they had been surrendered. Such cases certainly have no application whatever to the present question, because nothing can be more clear than that a prisoner himself has no right to raise such a defence. Even in Prance where, as I have shown your Lordships, the law and the practice of Extradition goes far beyond that which prevails in this country and in the United States, a prisoner is not permitted to set up such a defence, for the clear reason that he is within the jurisdiction of the Court which has the authority to try him for the offence of which he is charged, and that whether he ought to be tried, for an offence other than that for which he has been surrendered is a matter of diplomacy between the two countries, and not of question between the prisoner and the Court before which he is being tried. That circumstance, therefore, disposes of by far the larger number of cases referred to by the noble Earl and by MR. Fish. The cases really in point are only three in number. One is that of Heilbronn, which if the Government of this country had ever known and had approved what was done, it would not have been very creditable to this country. I will tell your Lordships what happened in that case. Heilbronn was a man who was brought up in New York under a proceeding of Extradition for the purpose of being sent home to this country in order to be tried here. He was charged in New York with robbery, and he grounded his defence upon the circumstance that the facts proved disclosed not robbery, but embezzlement, which was not an offence for which he could be surrendered under the Treaty. The Commissioner before whom the case was heard decided that the offence of which he was charged was robbery, and the man was surrendered and was sent over to this country for trial—and I may mention that the prosecution was conducted not by the Crown, but privately. When he was tried here this actually occurred—the Judge at once said that the facts showed that the offence committed was embezzlement, and not robbery, and the man was tried and sentenced for the former offence, for which he ought not to have been surrendered under the terms of the Treaty. That would not have been very creditable to the Government if they had ever heard of it; but the Government never did hear of it. It was never brought under their notice at the time of the prosecution, or until it was mentioned in the Committee of the other House in 1868. That was the case of Heilbronn. The other two cases were the cases of Burley and Caldwell. As to these cases it appears that the Law Officers of the day were consulted; and no person can speak with greater respect than I do of the Law Officers at these two particular dates. But I am bound to say that I should have liked to see the reasons assigned by the Law Officers for the opinions said to have been given by them, and I should have liked to know whether the attention of the Law Officers was called to the principles of Extradition to which I have referred, as well as to the other documents I have mentioned. Even if I were unable to agree with what appears to have been the opinion of the Law Officers of the Crown, if the result had been communicated to the American Government, and they had been told, "These are the principles upon which the British Government acted" I could understand the argument ad hominem now urged on behalf of the American Government—that this country should not depart from the solemn determination then arrived at. But, so far from that being the case, the American Government were never informed of the views said to have been entertained by the Law Officers of the Crown; and moreover, in the outset of the late Correspondence with the American Government those two cases were not referred to at all. The case of Burley was a singular one. It occurred in 1865. Burley had been surrendered to the United States from Canada on a charge of robbery. His friends in this country apprehended that he was going to be tried for piracy, and they appealed to the Foreign Office, asking that Her Majesty's Government would so far exert their good offices on his behalf as to secure "that he may not be tried on any other charge than that on which the claim was made for his Extradition." The Foreign Office thereupon answered the appeal, which was made by the hon. Member for Glasgow (MR. Dalglish), who was told that "Lord Russell had addressed to Her Majesty's Chargé ďAffaires at Washington such instructions as the case admits of." Now, observe what were the instructions sent to our Chargé ďAffaires, and what was the communication made by him to the American Minister. These are the instructions sent to MR. Burnley, then our Chargé ďAffaires— I have to state to you that, having considered this application in communication with the proper Law Advisers of the Crown, Her Majesty's Government are of opinion that if the United States Government, having obtained the extradition of Burley on the charge of robbery, do not put him on his trial upon this charge, but upon another—namely, piracy (which, if it had been made before the Canadian authorities they might have held not sufficiently established to warrant his extradition), this would be a breach of good faith against which Her Majesty's Government might justly remonstrate. If, however, the United States Government does bonâ fide put Burley on his trial for the offence in respect to which he was given up, it seems to Her Majesty's Government that it would be difficult to question the right of that Government to put him upon his trial for piracy also, or any other offence which he may be accused of having committed within their territory, whether such an offence was or was not a ground of extradition or even within the Treaty."—[North America, No. 3 (1876), p. 20.] This is a large view, and one with which I cannot concur. But now let us see what was the communication to MR. Seward, founded upon this despatch. MR. Burnley wrote to MR. Seward— Her Majesty's Government having considered this application, are of opinion that if the United States Government, having obtained the extradition on the charge of robbery, do not put him on his trial upon this charge, but upon another—namely, piracy, which, if it had been made before the Canadian authorities, they might have held not sufficiently established to warrant his extradition, this would be a breach of good faith, against which Her Majesty's Government might justly remonstrate. Her Majesty's Government are, therefore, willing, should the grounds upon which Burley is to be tried take the above turn, to comply so far with the application of MR. Burley, senior, as to instruct me to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the Treaty."—[Ibid. p. 22.] Now, if I had been MR. Seward, receiving this despatch, without knowing what was behind, I should have said—"This is an expostulation with me against allowing a man to be tried for any offence but that on which he was surrendered." MR. Seward, in fact, did so understand it, and thus replied— The Honourable the Attorney General informs me that it is his purpose to bring the offender to trial in the Courts of the States of Ohio and Michigan for the crimes committed by him against the municipal laws of those States—namely, robbery and assault, with intent to commit murder. He was delivered up by the Canadian authorities upon a requisition which was based upon charges of those crimes, and also upon a charge of piracy. This, I believe, was a mistake— which is triable, not by State Courts, but by the Courts of the United States. I am not prepared to admit the principle claimed in the Protest of Her Majesty's Government, that the offender could not legally be tried for the crime of piracy under the circumstances of the case. MR. Seward thus shows that he considers it a protest against the principle of trying a prisoner for any other crime than that upon which he has been surrendered— Nevertheless, the question raised upon it has become an abstraction, as it is at present the purpose of the Government to bring him to trial for the crimes against municipal law only."—[North America, No. 3 (1876), p. 22.] These are the crimes upon which MR. Seward says Burley was surrendered; and therefore, says MR. Seward, I do not admit your protest, which I believe to be a protest against trying a man for any different crime from that for which he has been surrendered; but the point is now an abstraction, for we do not mean to do so. That is the case of Burley. The case of Caldwell is a lesson to us as to the caution which should be exercised by the Government in these matters. Caldwell was handed over from Canada to the United States in 1871, and was surrendered for forgery. He appealed to the Canadian Government, and through them to the Home Government, upon this ground—that he was going to be tried for a different offence—namely, bribing an officer of Customs. Now, it is quite true that in 1871—I do not know for what reason—possibly because there were then many other matters in controversy with the United States, and it was not thought desirable to add to the number—there is a despatch from the Colonial Office stating that there does not seem to be any ground for interference. Lord Kimberley adds— Her Majesty's Government are further advised that there is nothing in the Convention which would preclude the indictment of the petitioner in the United States for an additional offence which is not enumerated in the Convention, so long as such proceedings were not substituted for proceedings against him on the charge by reason of which he was surrendered."—[North America, No. 4 (1876), p. 7.] What happened? The case is cited in a book which MR. Fish says is of great authority—"Clark on Extradition"—and, as I say, is a lesson to us of the results of laxity in these matters. Caldwell never was tried for the offence for which he was surrendered, and he was tried for the offence of bribing an officer of Customs. My Lords, I think that the less said about the case of Caldwell the better. This disposes of all the cases which it is necessary to notice.

My Lords, I now come to what the noble Earl (Earl Granville) calls the declarations made by public men upon this subject. I heard what was said in the House of Commons in 1866 by my noble Friend the then Secretary for Foreign Affairs, being myself at that time Attorney General; and I only mention the fact now for the purpose of showing that in 1866, and after the case of Burley had occurred, whatever the construction put upon it, a distinct and clear declaration was made in the face of the country in the other House of Parliament of what the Foreign Office conceived to be the position of the Extradition question as regards the trial for criminal offences. The noble Earl says the words used on that occasion were words used in the heat of debate. Nothing can be more inaccurate. There was no heat of debate. What occurred was this—A Bill was passing through the other House on the subject of Extradition. It was earnestly criticized, and an Amendment was moved requiring that, before any person was given up, the country to which he was surrendered should be asked for an assurance that he should not been tried for any other offence except that for which he was surrendered. My noble Friend (the Earl of Derby) objected to that Amendment. We said to the House of Commons—"In the first place, if it is included in the Treaty, it is not necessary to take a pledge from the other country on the subject; and in the second place, as we understand the law, this country wouid have a right to complain of any other country which, after a prisoner had been surrendered, should try that prisoner for any offence other than that for which he was surrendered." This is what my noble Friend said, as the head of the Foreign Office at that time, and speaking in his position as Secretary of State— As for the proposal that the French Government should be required to enter into an undertaking that they would not try any person for any offence other than that for which he had been given up, he thought that that would be a very feeble protection indeed: for, assuming for the sake of argument that the French could act in the manner suggested—and he really begged pardon for assuming it, even for that purpose——he could only say that a Power which could act in such a manner would not be bound by an undertaking of the kind proposed."—[3 Hansard, clxxxiv. 2114.] What I said as Attorney General was that— With respect to the latter part of the hon. Member's Amendment, which required that the person should not be tried for any offence but that for which he had been given up, we should certainly have a well-founded complaint against any country that demanded a man to be given up for one offence and then proceeded to try and punish him for another."—[Ibid. 2122.] So much, my Lords, for the declaration which was made in the face of the Parliament of this country, and acted upon in 1866 in the other House of Parliament, where the Amendment was withdrawn in consequence of that declaration. The Papers with regard to Burley and Caldwell were not exhibited to Parliament, but this was a declaration made in the face of Parliament, and about which there could be no mistake. The opinion of the late Sir Thomas Henry, whose loss we all deplore, was clear that the course taken by Her Majesty's Government was the course required by the practice and by the documents in the case. The next authority the noble Earl (Earl Granville) refers to is MR. Mullens, who is described by MR. Fish as the Solicitor General for England. That, of course, is a mistake; but at all events MR. Mullens is a most respectable solicitor. And what is his opinion as to the propriety of trying prisoners for offences other than those for which they were given up? Sir Robert Collier asked him this question— Supposing a man is given up, is it your opinion that he should not be triable for any quite different offence, or that he should only be tried for that offence, and then sent back again, at all events, and not put upon his trial for any other? MR. Mullens replied— I think he should only be triable for the offence named in the Extradition warrant, or for any other offence named in the Treaty arising out of the same facts. That is a very different thing from what is contended for now. Sir Robert Collier next: asked— Assuming this case, that a man has committed murder in this country and afterwards larceny and escapes to France, and that he is sent over here and tried for larceny; and assuming that he is acquitted on that charge, are we to let him go, or are we to try him for murder, as we have him here? MR. Mullens answered— I think we should not let him go, but we should get the consent of the Government which gave him up before we tried him for murder. Who is the next authority appealed to by the noble Earl? Lord Hammond—of whom I desire to speak with the greatest respect and who was then Under Secretary for Foreign Affairs—came to be examined on the matter, and he appears to have given evidence which was very far indeed from being in favour of the view taken by the noble Earl. Indeed, his evidence was very remarkable. He was asked on the first day of his examination whether he had any recollection of the demands made in respect to trials for different crimes, and he said— I cannot remember any. There was a case, but I do not think that it was a case of murder, connected with the Canadian troubles. A man fled to Canada, and the question was whether the man should be given up; and the further question then arose whether, if he was given up, he should be triable for any other offence. I think that it was ruled that if he was bonâ fide tried for the crime for which he was given up he might be tried for another offence afterwards. Then he was: asked— Have you any record or minute of the particulars of this case you are now alluding to? He replied— I should think that probably the Law Officers' opinion was taken upon it, but that could not be given to the Committee. The witness added that he would see whether he could get any particulars of that case. On the second day of his examination MR. Hammond said the case was that of Burley, and he described, just as I have done this evening, how that case arose. He was: asked— Do you mention this case to show that a man can possibly be tried for another offence than that for which he was given up?—I think the questions led to that point. But does this case decide the point either one way or the other?—No; only that we admit in this country that if a man is bonâ fide tried for the offence for which he was given up, there is nothing to prevent his being subsequently tried for another offence, either antecedently committed or not. Did we make any demand upon the American Government after we had learnt that the man had been acquitted upon the first charge?—The man was not actually acquitted, because the jury disagreed and he was held over for trial another time. Then we never made any further inquiry about him?—No. MR. Hammond also said it would be very troublesome, if, supposing a man were given up under an Extradition Treaty, we were to instruct our Minister at the Court of the country to which he was given up to keep his eye upon the case and to ascertain what became of the man. And then came this remarkable answer, which I suppose expresses Lord Hammond's own opinion on the subject. After remarking that there is nothing in our Treaties to prevent a man being given up even for political offences, he said— In dealing with foreign nations, we can only go by our Treaty relations. If you ask me what is my own feeling on the subject, I should say it would be a great breach of faith and morality on the part of a foreign Government if, after having tried a man for the offence for which he was given up and having failed in convicting him of that offence, they should then put him upon his trial for a political offence, knowing well that if we had been aware that there was a political offence in the background we should never have given him up. Let me, now, substitute for "political offence" any offence which is not the subject of extradition. Would not a foreign Government know perfectly well that if we had been asked to give up a man for another offence we should not have done so, and does not Lord Hammond's reasoning, therefore, apply just as much to such an offence as it does to a political offence?

I have, I trust, satisfied your Lord ships that on the general principles of Extradition and on the wording of our Treaty, of the Act of Parliament of 1843 and of the American warrant the course laid down for the Government was a clear and distinct one, and that we could not have taken any other course. And now let me say a few words about political offences. In the Treaty with the United States of America there is not a word about political offences. If the noble Earl's construction be the right one, and if a person handed over can be tried for any other offence besides that for which, he was handed over, there is nothing in the Treaty which prevents his being tried for a political offence. I heard with great interest and some surprise the argument of the noble Earl (Earl Grey) on this subject the other night. The noble Earl was very bold indeed. He said people in this country are far too thin-skinned in regard to political offences—that political offences were very serious things, and that the men who committed them ought to be given up just like other offenders. Further, the noble Earl said that if this were not the view of the people of this country, they ought to be taught not to regard political offences as they do now. I know the boldness of the noble Earl, and I am sure that if any one is competent to instruct public opinion on this subject it is himself. But I do not wish him to be successful, and I should be very much surprised if he were successful. I believe the people of England have perfectly made up their mind on this subject. I believe they will not consent to deliver up persons for political offences. Whatever may be the form of Treaty or Act of Parliament, they will take care that no persons are delivered up for political offences. But if the construction contended for by the United States and by the noble Earl be correct, we have no security whatever against the surrender of political offenders under this Treaty. If it is in the power of another country, after trying a prisoner for the offence for which he was surrendered, to try him for another offence, that other offence might involve political considerations. There are two principles which are perfectly clear. The first is, that no man shall be surrendered for a political offence; the other is, that this country itself shall be the judge whether an offence is political or not. Even inside of our own country differences of opinion on that point constantly arise, and some persons think an offence is political which others do not regard as such. This is, at all events, a point which we will not leave to the judgment of another country—we must judge of it ourselves, and we cannot do so unless we know what is the offence or what are the offences for which the surrendered criminal is to be tried. My Lords, what security did the Minister of the United States wish for in this matter? MR. Fish says that he never desired to have a criminal surrendered for a political offence; but in the very same despatch in which he says so he tells us that as to all offences against the law of the States, as distinguished from Federal offences, the Government of the United States—with which observe alone we have the power of communicating—is powerless. They cannot control the prosecution in such cases; they cannot order it be suspended—nay, more, if a man be convicted the President of the United States cannot pardon him. The security of which MR. Fish speaks is, therefore, no security at all. But I would appeal from MR. Fish to President Tyler, who says, in effect—"Here is the Article in the Treaty; scan it over. In the careful enumeration of crimes which you see there the object has been to exclude all political offences."

I wish, in the next place, my Lords, to say a word as to a misapprehension which has arisen with respect to the Act of 1870. I have not up to this moment said a word about that Act; but I must now venture to correct what fell from the noble Earl who brought forward this subject on that point. The noble Earl said that we at first relied upon the Act of 1870, and that then we gave it up. But we have not given it up; and I wish it to be distinctly understood, so far as the Government are concerned, that we are disposed to agree entirely with the view of the United States Government, that an Act of Parliament passed in this country in 1870 cannot alter the terms of a Treaty made in 1842. But the Act might, whether by oversight or not, have imposed shackles and impediments on the Executive of a country in dealing with a prisoner whose surrender was demanded. Whether it has that effect or not it is difficult to say, because that depends upon the construction of a clause which I am bound to tell your Lordships honestly, after the best consideration I could give it, is absolutely and utterly unintelligible to my mind. I may add that upon the only occasion when it came under the notice of one of our Courts of Law—the Court of Queen's Bench—all the Judges of that Court said they thought it was very doubtful what the Act meant, and recommended that it should on the earliest possible occasion be set right by the Legislature. It imposes in its present shape upon any Government a very great difficulty; because if a Government were to hand over a prisoner without taking those assurances which the Act requires, he might, for all I know, obtain his Habeas Corpus and be set at liberty. That is the purpose for which we referred to the Act of 1870. It is quite immaterial as regards the broader and higher ground of what our obligations are under the document of 1842.

I will now say a word as to the policy of raising this question, as the Government have felt themselves obliged to raise it at the present time. The noble Earl (Earl Granville) said the other night that if we had let things go on, the great probability was that Lawrence would never have been tried for any other offence than that for which he was surrendered, and that we ought to have waited for some other occasion when if it were attempted to try a prisoner for a different offence we might have objected to the adoption of such a course. Well, it was, no doubt, open to the Government to act in that way; but I think I can show your Lordships that we were entirely justified in acting as we have done. Lawrence was in the United States handed over on a charge of forgery. There was an indictment found against him for some offence—I think against the Revenue Laws—which was not the subject of Extradition. There was, therefore, a distinct and clear announcement on the part of the United States that it was intended to proceed against Lawrence for the two offences. Now, we were able to say that although we could not agree with the Government of the United States in the construction which they put upon the Treaty, we believed them to be perfectly sincere in contending that that was the view which they had always entertained, and that although we differed from them, we were not prepared to make any serious demand upon them with regard to Lawrence. But how, my Lords, would the matter stand on another occasion? Suppose we had gone on surrendering prisoner after prisoner to the United States, and that on some other occasion—perhaps with regard to some offence which excited more interest in this country—the United States had pursued the same course, and proposed to try a criminal for a different offence from that for which he had been surrendered. Suppose the demand then made which has been made now; the United States Government would turn round and say to us— "You knew perfectly well what our view of the Treaty was. We told you months ago, and with full notice you have gone on surrendering prisoners; we had, therefore, a right to assume that you were satisfied with the attitude which we had taken in the matter." Now, my Lords, if there be one course more than another which would be likely to land us in complications and embarrassments it would be to leave open a sore of that kind to be dealt with on some future occasion in the case of some criminal with regard to whom a greater amount of public interest might have been aroused. I should very much deprecate the discussion of a question of this importance with reference to the merits or demerits of any particular person whose surrender might be asked for by the United States. The noble Earl spoke the other night of those men as murderers, robbers, and rogues—and for all I know they may be what he describes them to be, although the tenderness of our law assumes that a person is innocent until he is proved to be guilty. But be that as it may, I can conceive nothing more dangerous than to bring down a great and important principle to the level of the merits or demerits of the individual in whose case that principle is brought in question. That is not the way in which we act in this country with regard to our criminal law, on the great principles of which and on the cardinal rules of evidence we all depend for our lives and liberties. If in a particular case we were to overstrain or overthrow those great principles and those rules, the evil which we would have done would be sure to come back upon us in some great political prosecution, or some trial of a man against whom an unjust and violent prejudice happened to have arisen in the public mind. So it is with regard to this question of Extradition. There are some words which fell on the subject from a great master of history which are the words not only of a historian, but of a philosopher, and which I should like to read to your Lordships. He says— We are ever too ready, when it is the redress of our own injuries that is in question, to strain and compromise those general laws to which we have all to look for protection in the time of our adversity; and thus, when the day of trial comes, we find those laws no longer in existence.'' These are words of warning which I think we should do well to lay to our hearts at a time when there is little political excitement. I have now laid before your Lordships as concisely as I could the principles on which the Government has acted; and I maintain that the obligations under which we acted not only justify the conduct which has been pursued, but rendered any other course of conduct absolutely impossible.

LORD SELBORNE

My Lords, there are some points about which there will be universal agreement, and one is that it is our duty to discuss this question with the most perfect dispassionateness, with the greatest possible desire to be fair and candid, and certainly with the remembrance that no triumph of mere ingenious argument, even though it might be successful for a time, could compensate for the mischief that might be done by the possible unsoundness of that argument. Your Lordships must have observed that my noble Friend who introduced this subject (Earl Granville) was careful to do so in a tone or manner which could not possibly bear the construction of a Party attack or indicate a desire to magnify the errors—if errors there were—of Her Majesty's Government. I desire to imitate my noble Friend in that respect; and at the outset I have to make three acknowledgments to Her Majesty's Government, and so far to place the correctness or incorrectness of the course they have pursued beyond the possible limits of a Party attack. First, it is undoubtedly true, as has been stated by the noble and learned Lord on the Woolsack, that when this question came incidentally under discussion in the other House in 1866, both the noble Earl opposite (the Earl of Derby), then and now Foreign Secretary, and my noble and learned Friend on the Woolsack expressed views, the full effect of which, as now explained by them, may possibly not have been obvious to all who heard them, but views entirely consistent with the arguments on which they now rely, and, I have no doubt whatever, intended by them at that time in a sense substantially the same with the opinions they I now express. Whether they are right or wrong in the view they take of the obligations of this country under the Treaty of 1842, no one is fairly entitled to call in question the consistency of their present I and former opinions, or to deny that they were justified, whatever might be the different views taken by others, in acting upon the opinions which they expressed in 1866. The next point to be borne in mind in favour of the Government is this—although undoubtedly the Act of 1870 could not alter the provisions of the Treaty, which it professed to respect and keep alive, and must, I think, be supposed to have intended to do so; on the other hand, so far as the future policy of this country is concerned, the Act of 1870 did, in substance—as to the precise extent there is something to be said—point out to those who might afterwards have the negotiation of any Extradition Treaties on behalf of this country a line of policy in accordance with that now followed by Her Majesty's Government. Therefore, they were not only justified, but—so far as general policy is concerned, so far as any action intended to be independent of the Treaty of 1842 is concerned—they were more than justified in acting upon the views and principles which Parliament had laid down as the general rule for the future. The third concession I desire to make to Her Majesty's Government—and it is really very important with reference to the position of this country—is that the Treaty of 1842 being terminable by either party at will and without notice, no question of a breach of international faith could fairly be raised, even if Her Majesty's Government were wrong in the construction which they put upon that Treaty, when they gave notice of what their construction was, in what sense they understood their obligation, and that they should not act upon the Treaty in any other sense. In form, no doubt, that was not a declaration of their choice and will to put an end to the Treaty; but, having the power to do so without previous notice, it is manifest that an intimation of that sort was to all intents and purposes equivalent to a conditional declaration of an intention to put an end to it if there were continued difference of opinion as to its construction. In that state of things, I think no question of good faith as between nation and nation can be involved in the course Her Majesty's Government have taken, even if they have been wrong in the view they have taken of their obligation. I must now take exception to two expressions used by my noble and learned Friend. He spoke more than once of my noble Friend (Earl Granville) having adopted the argument of the United States. It may be that the view we take is the same with that which has been taken by the United States; but I protest against it being said that we adopt the arguments of the United States. The arguments are our own, the interpretation that of two Governments to which my noble Friend has belonged, and that for which I myself am responsible as the principal Law Adviser of the Crown in 1865. It is our own view, our own interpretation, which we are justifying, and not the argument of the United States, and I venture to think we do not go too far in asserting that, until the accession to office of the present Administration, it was the view of the British Government. We may have been wrong, but believe ourselves to have been right; and, having acted bonâ fide when former Governments took steps founded on our view, we had no option but to defend our own course, our own action, and our own opinions, although they happened to be the same as those of the United States. The other expression of my noble and learned Friend, to which I take exception, was that in which he stated it to be our construction of the Treaty, that the country to which extradition was made was at liberty to try for any other offence, provided it "goes through the form" of trying for the first offence. My noble and learned Friend will excuse me saying that this was a piece of rhetoric hardly characterized by his usual candour, because throughout the Papers which express the views formerly taken by our Government and throughout the arguments, it has always been said there must be a bonâ fide trial upon the charge on which the man was delivered up; that being the test of the bona fides of the requisition; because, if he were not tried at all for the offence for which he was asked to be surrendered, it might be strong evidence that there was an indirect purpose in asking for the surrender on particular grounds. Therefore a bonâ fide trial for that particular offence has always been regarded on our side as involved naturally in the demand for extradition. I will now follow my noble and learned Friend in his arguments. I confess it was with some surprise that I beard him endeavour to lay the foundation for everything which was to follow—not in the terms of the Treaty between the two Powers, but in some vague notion of à priori comity leading to a law of Extradition independent of Treaty, and importing silent clauses and expressions of jurists, on which, he laid much stress. These arguments do not seem to have been thought good enough to be worth producing in the Correspondence laid on the Table; and the able despatch in which the arguments of Her Majesty's Government are summed up, so far from parading the opinions of jurists and text-writers, disputes the propriety of introducing them. But if the argument developed from those writers had any really legitimate bearing on the question, it is not conceivable that my noble and learned Friend or the Law Advisers of the Crown would not have discovered the passages he has just quoted in time for them to do duty not merely in your Lordships' House, but in the important Correspondence with the United States Government. My Lords, I confess that for my part I have not been persuaded by my noble and learned Friend's able speech to accept the views of those writers as in any degree affording a solution of this question. There is no such thing—certainly there never has been such a thing recognized in or by this country—as an à priori international obligation to grant extradition at all. That depends with us entirely on Treaties. The terms of those Treaties must contain in themselves the whole measure of the obligation as between country and country. I am fully aware that even in the United States there have been great writers—at least as great as any of those quoted by my noble and learned Friend—who have advocated the doctrine that there is a certain à priori right to demand extradition. But my noble and learned Friend did not refer to them, because he would not find in them anything in support of the view that it is an implied condition of extradition that a man should be tried only for the crime on which he has been surrendered. The real truth is, all the writers to whom my noble and learned Friend referred do but generalize from the laws of their own countries or particular Treaties of their own or other countries which they collect in their books. That is more especially the case of Fælix with regard to France. Now, as to the law of France, my noble and learned Friend stated very truly that in 1841 the Minister of Justice laid it down as a rule that a man was not to be tried for any offence but that on which he was given up, and he referred in illustration of that principle to a case which occurred between France and Geneva. But what is the bearing of all that on the question now before us, except that another great and civilized country has taken the same view, not of law, but of policy, which was taken by the British Parliament in the year 1870? In France extradition depends, not on law, but entirely on the absolute despotic action of the Government. The Executive Government of France in 1841 laid down for its own guidance and the guidance of its Executive officers the same rule which was afterwards laid down by the Legislature of this country in the Act of 1870. How that bears upon our engagement of 1842 with the United States passes my comprehension. I will not, therefore, detain your Lordships long on that point. Not only, my Lords, does the Executive Government in France possess absolute power with respect to extradition, but the Court de Cassation in 1867, at the instance of M. Baroche, the then Minister of Justice, decided that the French Courts had nothing to do with the rule laid down in the Circular referred to; and I believe the Minister of Justice in that year did actually cause a man to be tried for an offence other than that on which he had been surrendered, and established his right to do so before the Court de Cassation. I ought to apologize to your Lordships for having said even so much as this on the subject of the law and practice of France; because the question is not as to the law and practice of France, but as to the Treaty between this country and the United States. My noble and learned Friend said he did not know of any authority who expressed views different from those entertained by Her Majesty's Government. My Lords, we have a writer of very great learning who has collected a body of International Law with perhaps more fulness than most others—a writer, I believe, to whom foreign jurists look with considerable respect—I mean Sir Robert Phillimore. I do not think my noble and learned Friend would find it laid down in Sir Robert Phillimore's book as a principle of International Law with respect to Extradition, that a man should not be tried for any offence but that on which he has been surrendered, though. I believe he would find it to be there stated as a recognized principle of international usage that an extradited person should not be tried for a political offence. Now I come to what governs the whole matter—namely, the Treaty of 1842. My noble and learned Friend asked, if a man could be tried for any other offence than that on which he had been surrendered, why were certain crimes specified in the Treaty, and a provision laid down that there should be primâ facie evidence according to British law that he was guilty of one of them? My noble and learned Friend noticed that that list of offences did not include embezzlement, manslaughter, rape, and abduction, and he challenged us to say why there should be that selection. He thought it was not a sufficient reason to say that this was done to provide against arbitrary arrests, and then he went on to state his own view. Well, my answer is, that the specification of offences is made because it is not consistent with the principle of Extradition that a person should be given up, except for a crime which has a common character in both countries. For that reason the practice has been to specify offences as to which the jurisprudence of both countries is understood to agree, and as to the meaning of which, therefore, there should be no ambiguity. It is perfectly true that the specification of offences does not go as far as it might do; but it goes as far as, at the time of negotiating the Treaty between the two parties, it was thought necessary or convenient to go, in the direction of ascertaining what are the graver offences which have a common designation and a common meaning under the laws of both countries. Then my noble and learned Friend went on to ask, why does the Treaty require primâ facie evidence in the first instance, according to English law, as to the guilt of the man in respect to the crime for which his surrender is asked? Plainly because the crime is specified—because the same principles in both countries apply to it, though each country may have its own particular method of dealing with it. That provision as to primâ facie evidence cannot mean that British law is to govern for any other purpose than for that of determining the sufficiency of the case for giving up the man to American justice. When he gets to America he must, of course, be tried, not by British, but by American law, and according to American rules of evidence, and if found guilty must undergo the punishment which American law provides. The sole purpose of applying the test of British law in this country is that before we give the man up we should have primâ facie evidence that he is guilty of one of the crimes specified in the Treaty of Extradition. We give him up, then, because we have confidence in the justice of the country which claims him; and if the conditions on which we give him up are fulfilled, I am utterly at a loss to understand why he should not afterwards be tried for any offence whatever—other than political—for which American law can try him. Let us look at the abstract question from the common sense point of view:—and it is very material to do so when we are asked to interpolate what my noble and learned Friend calls "a silent clause," not expressed, as is admitted, in the Treaty. Of course if the à priori reason were so plain, so manifest, that no two sensible persons could differ about it, then I could understand the argument as to interpolating a silent clause. But that is not the case. I hope that many of your Lordships now present heard the speech made by the Chief Justice of the Court of Common Pleas when this question was last before the House. Putting political offences aside, he appeared to me to show, in the most convincing manner, how contrary to the true spirit of international justice it would be to fetter the demands of that justice by requiring that a man should be tried only for the precise offence for which he was given up. If you really place confidence in the justice of the country with which you make the Treaty, what possible interest can the country which delivers a man up have in sheltering him from trial and punishment for any crime that he has committed? Have you any engagement with him to shelter him in that way? Certainly not. Your only engagement is that which you have with the country with which you have made the Treaty. Are you to assume that he will be fairly tried for the crime for which you have surrendered him, but that he would not be fairly tried for any other? Surely not. The mode of examining, the mode of trial, the law of evidence, and the consequences of the crime may differ entirely in the two countries; yet he is sent to be tried according to the law of the country to which he is given up, not ac- cording to ours. But it is said that if he is acquitted the inference then is that if the facts which come out in evidence had been brought before the magistrate of the country which surrenders him he would not have been surrendered, and the country to which he is sent would avail themselves of their own wrong if they tried him for another offence. That, however, is an argument which puts aside the substance in dealing with the form of the matter. Take the case of murder and manslaughter. Murder is the greater, manslaughter the less offence. I rather think that by our present law, even if the indictment brought against a man is for murder alone, he may be found guilty of manslaughter upon the very same evidence, because the latter offence is less than the former, and the jury may take a merciful view of the facts. Can it be said that this country has an interest in protecting a man who has been delivered up for murder from being convicted for manslaughter, when under a more merciful view of the evidence adduced to convict him of murder the offence may be reduced to the lower crime? Surely if the man is handed over by us on sufficient grounds we have no interest in fettering the action of justice. Take the case of extradition crimes only. Supposing a man is accused in America of all the seven offences mentioned in the Treaty, would you actually impose on the United States the burden of sending over to England all the voluminous proofs of every one of the various offences of which it might be necessary to accuse him? And all this not because it is supposed that they have some sinister end in view, or a desire to do that particular man some wrong, but because you say it is our right that he shall not be convicted of any offence other than that as to which we have seen the evidence. If the case of political offenders were put out of sight, surely it would be conducive to the interests and the objects sought by all Extradition Treaties that where sufficient evidence is produced to justify the surrender of a criminal, he should be tried in the country to which he goes upon any criminal charge that might be brought against him. That view is, I hold, at all events not so manifestly wrong or unreasonable that you should introduce a silent condition which is not expressed in this particular Treaty, for the purpose of excluding it. The Treaty is as far as anything in the world can be from implying any such thing. It says, the two countries agree that on mutual requisitions made by them or their Ministers they will respectively deliver up to justice all persons who, being charged with any one of the specified offences committed in the jurisdiction of the other, shall seek an asylum in the territories of the other. The noble Earl the Foreign Secretary held that the person surrendered was only lent to the foreign Government for the purposes of that surrender, to be tried for the particular offence. The persons who negotiated the Treaty of 1842 and the Minister who introduced the Act of 1843 were utterly ignorant of that theory. Nay, more, a contrary theory was distinctly expressed and recognized in the debates on that occasion, although the only question that was then seriously discussed was the bearing of the Treaty on the subject of slavery. With your Lordships' permission, I will trouble you with a few extracts from the debates in the House of Commons when the Act of 1843 was under discussion. Referring to the case of a slave who had come within our jurisdiction, MR. Vernon Smith said— Supposing he was really guilty of some crime, was he, when taken back, to be treated as a slave or a freeman? The conditions of trial were very different, and so were the punishments of slaves and freemen. In the case likewise of a slave committed by a magistrate unjustly (and he supposed magistrates in the Colonies were not wiser than anywhere else), and afterwards acquitted, what became of him? All the vindictive feelings of the owner might be exasperated against him on account of his flight, and he might be inclined to wreak his vengeance upon him when thus restored to his possession."—[3 Hansard, lxxi. 564.] Was that met by the Attorney General of that day by the argument that the man was only lent to the United States to be tried for the particular crime for which he had been given up, and that if he was acquitted there was an implied condition that he should have an opportunity of returning to our jurisdiction? Sir Frederick Pollock, the Attorney General, then answered— We had nothing whatever to do with the circumstances of the person delivered up being a slave or a freeman. We should deliver him up as a criminal…All that we insist upon is that before any man shall be delivered up to the Americans he shall be charged with one of the crimes mentioned in the Treaty. If that were done we did not care whether the man had been a slave or not…The magistrates would have to deal with a man charged with having committed an offence in a foreign State, and his status in that State had nothing to do with the case. That was a point to be settled on the man's return to America."—[Ibid. 566.] Lord Macaulay was not satisfied with that answer. He thought it made matters worse, and he would rather give up the Bill; and he: asked— Suppose the man was acquitted in America, what was to be done with him then? Was he to remain a slave in the hands of a master incensed by the attempt to run away? Would the slave's life in such a case be safe, even after his acquittal?"—[Ibid. 571.] The late Lord Derby, then Lord Stanley, replied to that thus— No doubt it was possible that persons, whether guilty or not, if sent back to a country where slavery prevailed, might be returned to a state of slavery."—[Ibid. 577.] That was the language of the Lord Stanley of that day, and there was no man in this country who was more opposed to slavery, or who would have been more ready to take any proper steps to rescue a man from slavery than he was. I have referred to these passages to show that the idea that a man was only lent to the foreign State, to be tried for the offence for which he was surrendered under the Treaty of Extradition, wasn't then entertained by the British Government. The noble and learned Lord on the Woolsack laid great stress on the words, which are undoubtedly found in the Act of 1843, though not in the Treaty, to the effect that a man should be surrendered "to be tried for the crime of which he was accused." The noble and learned Lord insisted, that this affirmative implied the negation of everything else: and he endeavoured to fortify that conclusion by several illustrations;—such as, that a man cannot be tried in one county under a warrant directed to another county, and that trust funds cannot be invested in one security when it is directed that they shall be invested in another. Illustrations of that kind have no application whatever to the present question. It is true that a man cannot be tried in one county under a warrant directed to another county; but that does not prohibit a second warrant directed to another county from being issued by any competent authority: and it is not because trust funds are directed to be invested in a particular class of security that a subsequent order may not be made directing them to be invested in other securities. The authority of the English Act of Parliament, of course, goes no further than the particular purpose expressed in it; and that authority is spent and exhausted, when the man has passed beyond British jurisdiction. Another authority, that of the State into whose jurisdiction he passes, then comes in; and, unless that State has agreed by Treaty to make a particular and limited use of that authority, it cannot be bound by any negative inferences from the terms of an English statute; which, indeed, are inferences not drawn by the Courts of the United States from the exactly similar terms of their own Act of Congress. There is, therefore, no analogy at all between those cases and the point now at issue. What can such cases have to do with the power of a country to whose justice a man has been surrendered to try him for any offence he may have committed according to their own law? I therefore demur entirely to the proposition that because an English Act of Parliament and an American Act of Congress state that a man is to be delivered up to be tried for a particular offence, therefore he cannot be tried for any other. To show that in trying him for any other offence a breach of faith under the terms of the Treaty would be committed, we must do something more than put forward words contained in the English Act of Parliament. In my opinion, we ought to treat with some respect the construction which has been put, not only on their own Act of Congress, but also upon the Treaty, by the American Courts of Justice. In the United States, Treaties confirmed by the Senate are law, without any Act of Congress, and are proper subjects of judicial interpretation. The words to which the noble and learned Lord refers have been the subject of judicial interpretation in the American Courts, as appears from the Papers; and these Courts, having before them the terms of the British and American Acts, of the Treaty, and of the warrants, have held that the language used in them does not bear the construction the noble and learned Lord seeks to put upon it: and the same view has also been taken by the Canadian Courts. But the matter does not stand there; because if these words in the Act of 1843 have the force and the importance which the noble and learned Lord attributes to them, how is it that they were omitted in the Act, otherwise similar, which was passed to carry into effect the Extradition Treaty with Denmark in 1856? The next step brings us to a matter to which the noble and learned Lord made no reference whatever, but the importance of which was pointed out by the noble Lord near me (Lord Hammond). I refer to the terms of the Convention made with France in 1853. Those terms showed that there was then no objection whatever on the part of the British Government to a man being tried for any Extradition crime other than that for which he had been surrendered, after he might have been tried and acquitted of the offence for which he had been delivered up. The words of the 7th section of the Convention are— 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 offence or crime not described in the present Convention, which he may have committed previously to being surrendered."—[Hertslet, ix., 281.] On which MR. Clark, in his book on Extradition, observes— It will be observed that under this Convention a person who has been surrendered could have been tried for other offences than that for which his rendition had been granted, provided that such offences were not political and were within the list of crimes contained in the Convention. It will be remembered that at that period Parliament was very jealous of any concession on this subject being made to France—a circumstance which made it very difficult to arrive at any agreement on the question of Extradition. The Convention failed, but on other grounds than the terms of the section which I have just read to your Lordships, and I merely refer to them to show what was the understanding of the British Government on the point at that time. I now come to the case of Burley, in which the British Government had every possible motive for raising in favour of the prisoner the point now taken by the noble and learned Lord. At this distance of time I am not committing any indiscretion instating to your Lordships the views which were then held by the British Government with reference to that case. Burley was a commissioned officer of the Confederate States, who, with assistance from sympathizers in the British Provinces, manned a vessel to carry on warlike operations on the Lakes: and he made an attack, involving the capture of goods and danger to life, on Johnson's Island, a part of the United States, to which the war had not, up to that time, penetrated. For these Acts, he was charged in Canada under the Extradition Treaty with robbery and with assault with intent to commit murder. The Canadian Judges held that they were bound to surrender him on the charge of robbery. The Home Government, however, did not approve the decision of the Canadian Judges, considering the evidence to prove that the acts done were political and belligerent, and not civil offences. They thought that the man ought not to have been surrendered; and, moreover, they were afraid that he would be treated as a political offender. They, therefore, would have been most anxious to raise the point that the man could only be tried for the offence for which he had been surrendered, had they felt that the terms of the Treaty would have enabled them to do so. It was my duty as one of the Law Officers of the Crown to advise the Government on the matter; both I and my Colleagues were satisfied that the Treaty would not bear the interpretation the noble and learned Lord now desires to put upon it, and we came to the conclusion, that the Government could not interfere in the matter, if Burley was bonâ fide put on his trial for the crime of robbery, for which he had been surrendered. The Secretary of State acted accordingly. I do not mean my noble Friend (Viscount Cardwell), who was then Secretary of State for the Colonies, and who does not seem to me, from the Papers, to have had occasion to form or express an official opinion of his own on that point; but the then Secretary of State for Foreign Affairs. And the fact is, that Burley was tried, not only for the crime of robbery, for which alone he had been surrendered, but also for that of assault with intent to commit murder, as to which the Canadian magistrates had thought the evidence insufficient to justify his surrender on that ground. This case, therefore, was beyond all doubt an instance in which the British Government directly acted upon an interpretation of the Treaty directly the contrary to that of the noble and learned Lord. My noble and learned Friend says that in 1866 his opinion had been stated in Parliament. True; but in 1868, before the Committee of the House of Commons, evidence was given as to the view which the Foreign Office then took, and upon which it had acted, and this evidence was laid before Parliament and published to the world. The result of the Committee's deliberation was strongly against the view now taken by Her Majesty's Government. The Committee did not say—"We find the existing Treaty, in accordance with the view of all civilized nations, has a tacit clause which provides that a man when surrendered shall only be tried for the offence on which he has been surrendered;" but they proposed that in future Treaties there should be an express agreement to that effect. This is strong evidence that the Committee did not think it was already provided for in all the Treaties. It is clear, too, that this understanding was not then confined to the Foreign Office; for MR. Mullens, to whom Sir Thomas Henry referred as the solicitor who knew most upon the subject, also gave evidence of the existing understanding. MR. Stuart Mill asked this question:— As I understand it, the Treaty with America will not prevent a man from being tried for another offence? And the answer of MR. Mullens was— It will not. There in no stipulation that he shall not be tried for any other offence. It is clear that, according to the whole evidence, no such obligation was then supposed to exist, without being expressed; and accordingly the Committee recommended that it should be expressed in all future engagements. The third Clause of the Act of 1870, therefore, provides that future arrangements for extradition to any foreign State shall not be capable of becoming law by virtue of Orders in Council—I will read the words, to which sufficient attention has hardly been given— Unless provision is made by the law of that State or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign State for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded. And the corresponding Clause 19, expressing the obligation which we took upon ourselves, is in these words— Where, in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the first schedule to this Act, is surrendered by that foreign State, such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offence committed prior to the surrender in any part of Her Majesty's dominions, other than such of the said crimes as may be proved by the facts on which the surrender is grounded. It appears highly probable that, even in this country, a man might now be tried under an Extradition Treaty negotiated since 1870 for a different crime from that upon which he had been given up, provided it was one of the crimes enumerated in the Act of 1870, and provided it was proved by the facts on which the surrender was grounded. For example: the same evidence of facts might prove both robbery and murder—if so, though the criminal had been demanded for the robbery only, he might be tried also for the murder, or vice versâ. A further and material part of the case is contained in the last section of the Act of 1870, which provides that— This Act, with the exception of anything contained in it which is inconsistent with the Treaties referred to in the repealed Acts"—that is, the American, the French, and the Danish Treaties—"shall apply for the purpose of the execution of those Treaties. Now, the Legislature must have meant something by this clause. "Inconsistent with the existing Treaties?" But, according to the argument of my noble and learned Friend, there was nothing in the Act inconsistent with any of the existing Treaties. Why, then, was this clause inserted? According to our view, they were new conditions; and to apply them, retrospectively, to the existing Treaties, would have been inconsistent with those Treaties. But, if these conditions were really in the existing Treaties, then the exception introduced into the Act was perfectly idle and useless. This appears to be strong evidence that Parliament knew it was laying down a new law and was imposing new conditions for the future. It knew that these conditions could not be imported into existing Treaties; it did not wish that those Treaties should be put an end to; but it provided new machinery, which was capable of being applied, and which it intended to be applied, for the purpose of executing those Treaties; and, in point of fact, there has never been the smallest difficulty in applying, for the purpose of the surrender of criminals under the Treaty of 1842, the judicial machinery of the Act of 1870. It is rather singular that my noble and learned Friend should have taken no notice of the Note in MR. E. Clark's book on Bouvier's Case. MR. Clark is a lawyer of considerable experience, who has been engaged in several of these Extradition cases, and in his book is collected the whole history of Extradition. His Note is as follows:— It is curious that this point has not yet been raised in any case under the American Treaty. It is quite clear that neither that Treaty nor the law of the United States contains the provision required by the Extradition Act, 1870. The question is a very important one, and deserves to be fully argued. Nor can the case of Bouvier be accepted as conclusive, even with regard to France. The point may be raised again upon more satisfactory affidavits as to the law of France than were before the Court in that case. To MR. Clark, therefore, it seemed clear that this was a new rule in the Act of 1870, and that no such condition was expressed, or implied, in the existing Treaties. Those who advised the Government in a different sense from that of the argument of my noble and learned Friend were certainly justified in that advice upon every principle applicable to the construction of written instruments; and but for the political argument as to political offenders, I should say with confidence that the common sense of the matter is also entirely against the view of the noble and learned Lord. But I admit there is a good deal to be said in favour of the argument as it bears on the case of political offenders. I admit, fully and freely, that the rule which is laid down in the Act of 1870 is the only one which provides absolute security against the possible case of a man, surrendered for an extradition crime, being afterwards tried for a political offence. This may or may not be a sufficient reason for adhering to the policy of the Act of 1870. It may or may not be a sufficient reason for doing that which the Legislature was not prepared to urge upon the Government in 1870—namely, put an end to the American, French, and Danish Treaties. But it cannot have the effect of interpolating into those Treaties, by reason of that ulterior consequence, conditions which are not there. Nor, indeed, as far as the understanding of the two countries, between which the present question has arisen, is concerned, was it necessary to do so; because the United States admit as fully as we do, not that there is in the terms of the Treaty an implied exception as regards political offenders, but that by the understanding, common to them and ourselves, and to most, if not all, other civilized nations, such offenders ought not to be put upon their trial for a political, after extradition for a civil, offence. I must say that if ever there was a nation which was entitled to confidence in this respect, it is the United States. I do not know of anything much nobler than the conduct of the United States towards the citizens with whom they had been in deadly conflict, after the suppression of the Civil War. Men whom in their disputes with us they branded over and over again as pirates and everything else that was bad, were, on coming into their own power, recognized as political offenders, who had simply tried by force of arms to alter the constitution of their country. There never was an instance of equal leniency under such circumstances. Moreover, that leniency does not stand alone. The facts relating to the case of Burley strongly tend to justify confidence in the United States on this subject. He was put upon his trial for robbery, and also for assault with intent to commit murder; and the facts on which he had been surrendered being proved, the Judge in the United States pointed out that the complexion of the case was really political, and he summed up decidedly for an acquittal. It is true the jury did not agree upon their verdict, but the man had the benefit of the doubt, and was not convicted. I think he was put on his trial a second time, but the result was the same. It was impossible to eliminate the political element from the case, and consequently he was not convicted. I would here remind your Lordships of the remark which Lord Aberdeen made in 1843. He said— The great security was the provision that this part of the Treaty 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."—[3 Hansard, lxxi. 564.] It is plain that Lord Aberdeen would have followed the course which the noble Earl opposite was first disposed to take, until another view, which he at last accepted, was pressed upon him by another Department of the Government. I myself very much agree with a passage which I find in a letter from MR. Fish, under date the 22nd of May, 1876, in these Papers. MR. Fish says— The rights of society and the duties of the State in the punishment of criminals should not be narrowed and unduly restricted, upon the vague suggestions or fear that, at some time, some political criminal may be placed in jeopardy. The duty of Government to protect its own citizens and punish crime is equally a duty with that of affording hospitality and shelter to political offenders from abroad. The Government of the United States sees no reason why either should be sacrificed to the other, any more than why all criminals should escape, for fear some political offender may suffer."—[N.A. No. 2 (1876) p. 6.] Again, I find in a letter written by the late Sir Thomas Henry on the 4th of January last the following passage, which also appears to me to have an important practical bearing on this point:— After an experience of upwards of 30 years, I can say that I have never known a single instance in which there was any occasion to consider whether there was anything of a political character in the offence charged; and I therefore think there is no cause for the least alarm upon that ground. Extradition Treaties are in the nature of Mercantile Treaties, and are intended to afford protection chiefly against dishonest clerks and fraudulent bankrupts."—[N.A. No. 1 (1876) p. 45.] The present question has reference to no other nations which have Extradition Treaties with us, but only to the United States. They are perfectly willing to enter into the strictest engagements to try no man for a political offence who is surrendered under the Treaty; and I think it would be greatly to be deplored if negotiations which had so nearly reached a practical end before this difference between the two countries arose should now be made more difficult in their further progress. Her Majesty's Government have, on account of that difference, taken a course which is, in my view, equivalent to a notice to put an end to the Treaty of 1842; and the question now is, what modification is possible of its terms. Any conceivable modification would be better than that there should be a permanent cessation of a Treaty so important to both countries and to the administration of justice.

Motion (by leave of the House) withdrawn.

House adjourned at Nine o'clock, till To-morrow, a quarter before Five oclock.