§ EARL GRANVILLE
, in calling attention to the Correspondence lately presented by Her Majesty's Government respecting Extradition, said:—The Secretary of State for Foreign Affairs, while asking me last week to postpone my Motion for a few days, seemed to agree that the subject of the Papers to which I am about to call your attention is one worthy of the notice of Parliament. By the difference between the Governments of this country and that of the United States as to the construction of the Treaty of 1842, a position of great inconvenience has been created for both countries. It is a position from which both countries must wish to extricate themselves, and I hope we shall learn this evening that by the delay asked for last week some progress has been made in that direction; but, in any case, I believe that Parliamentary discussion, and possibly Parliamentary action may be useful and requisite; and if it be carried on in the same moderation of tone, with some slight exceptions, as it appears to have been done by both parties in the Diplomatic Correspondence, no harm can be done. Though the subject of Extradition is one on which 1769 writers on International Law have greatly differed, yet as to the obligation of surrendering the fugitive criminals of friendly foreign countries, I believe the result at which all civilized nations have arrived is this—First, that it is an act of comity in itself; second, that it is an advantage to both countries; third, that no nation has a right to make this demand without a previous arrangement with the other; and fourthly, that in no case ought persons to be so surrendered by one country to another merely for political offences. No country has been more strenuous in the assertion of the last important principle than have Great Britain and the United States—it is a feature of their policy which has commanded remarkable attention. Two questions are involved in the Correspondence upon which I am about to comment—they are distinct questions, although they have been somewhat mixed up. They have reference—first, to the execution by Her Majesty's Government of the existing Treaty—which I fear must now be treated as a dead letter; and second, to the negotiations for a new Treaty. I will deal in the first instance with the second question; and with regard to it I am not aware that Her Majesty's Government are open to any criticism apart from the difficulties which have arisen out of the refusal to surrender Winslow, and the possibly unnecessary stereotyping of our position in the last despatch. The facts regarding this negotiation for a new Treaty are as follows:—In 1870, while France and the United States had each more than 50 Treaties of Extradition with foreign countries, we had only three—namely, with the United States, with France, and with Denmark. This fact was due to a jealousy on our part—which I trust will never be abandoned or weakened—as to the maintenance of the rights of asylum for political offenders. A Committee was appointed in 1868 to consider how best Extradition could be combined with the maintenance of this right; and, founded upon the recommendations of that Committee, a Bill was introduced, which passed in 1870. This Act extended the number of offences for which Extradition might be made, facilitated the machinery for the purpose, and at the same introduced new provisions for securing a person from the danger of being tried for any political offence. I 1770 succeeded to the Foreign Office after the passing of that Act, and it was my duty to circulate to our Representatives abroad a copy of the Act, and soon afterwards a model draft Treaty. The result was that I was able to conclude Treaties with Germany, Italy, Austria, Belgium, and Brazil, and other important countries—a list to which the noble Earl (the Earl of Carnarvon) has made useful additions. Negotiations on my part immediately began with the United States—with whom we had already a Treaty—for a new Treaty. A good deal of correspondence passed between the two countries on the subject, and at length, during the last month of my tenure of office, information came from Sir Edward Thornton that the difference had been reduced to one point—the objection of the United States to accept any authority but that of Her Majesty's Government to decide what constituted a political offence. This proposal appears to have been objected to by the present Government, as it had previously been by the late Government. But negotiations under the Act of 1870 have been continued up to the present time. I am bound to say that nothing could be more conciliatory than the spirit in which these negotiations have been conducted by our Foreign Office, and that it has been more consistent than the United States, Mr. Fish having withdrawn concessions which he had previously made. But I am sorry to say that as regards the execution of the Treaty Her Majesty's Government do not appear to me to stand so well, either as regards their law or their policy. It may be presumptuous in an unlearned person to criticize the law of the Government, with all the high professional assistance which they can command; but I am encouraged—first, by the points raised not appearing to be very abstruse; second, by the knowledge that very high legal authorities take my view; and, third, by the fact that the Government have in the Correspondence constantly changed their ground. The whole question arose out of the solicitors of a Mr. Lawrence having in July last year informed the Home Office that their client was about to be tried for a second offence in addition to his trial for the offence for which he had been surrendered. At the instance of the Home Office the noble Earl opposite, the Foreign Secretary, protested on the 1771 grounds that such a course would be contrary to the 3rd section of the Extradition Act (1870), by which Act alone (Section 27) the American Treaty is kept alive; and contrary also to the law which governs the practice of the United States Government in Extradition cases as laid down in the Act of Congress, 1848, chap. 147, sec. 2, and contrary to the general practice of all countries. I believe that not one of these grounds is tenable. What has the Act of 1870 to do in an argument with a foreign country about a Treaty concluded 28 years earlier than the passing of that Act? It either agrees or disagrees with the Treaty. If it agrees, there is no need to refer to it. If it disagrees, in what position are we placed? During the French and German War, the Russian Emperor declared that he would no longer consider himself bound by a particular provision of the Treaty of 1856. But although France, Germany, Austria, and Italy, had previously intimated that Russia ought no longer to have this particular provision forced upon her, which was of a galling character, we indignantly and successfully resisted the assumption that the Emperor, by his own act, could free himself from this obligation. Supported by the unanimous voice of Europe, we obtained from His Majesty a distinct retraction, and a declaration that it was "an essential principle of the law of nations that no Power could liberate itself from the engagements of a Treaty, or modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable arrangement;" and in that declaration we ourselves unreservedly joined. After that solemn declaration how could we pretend that the Treaty of 1842 was affected by our Municipal Act of 1870? Fortunately, however, it is quite clear that it was the intention of the Legislature in 1870 to maintain inviolate the Treaty of 1842; and I could show that, in the opinion of the highest authorities—although the language of the 27th section might have been more precise—the Legislature were successful in their intention. But the question of the Act of 1870 as regards the United States is irrelevant, and has been admitted by the Government to be so in later parts of the Correspondence. As to the second point, I will refer later to the construction of the American Act of Congress. With 1772 regard to the third point—as to the general practice of all nations—these Papers show that in America, in Canada, and in Great Britain the practice has been as the Americans state it to have been. As to European nations, I doubt whether any evidence which is exact is forthcoming; and it must be remembered that all our Treaties with European Powers excepting France date since 1870. It appears from the Papers that it was in August that the protest founded on the irrelevant grounds suggested by the Home Office was sent to the United States, and that in the following month, September, the Law Officers were consulted. The substance of their opinion is not given in the portion of the Foreign Office letter which is given to Parliament, and they are not again referred to—so I do not know what their advice may have been. In answer to our protest, the Government of the United States repudiated our claim, gave their view of our argument, but took proceedings to prevent a second trial of Lawrence, and gave us some assurances to that effect. These assurances, however, are not quite consistent with subsequent declarations of non possumus made by them. The Extradition of a certain Winslow was demanded by the United States Government, and refused by us, excepting on the condition that the United States Government would give an assurance that this person should not until he had been restored, or had an opportunity of returning to Her Majesty's dominions, be detained or tried in the United States for an offence committed prior to his surrender other than the Extradition crimes proved by the facts on which the surrender would be granted. The demand for this assurance was placed solely on what had passed in the case of Lawrence and the Act of1870—that Act which I have already shown was irrelevant, and which ground Her Majesty's Government subsequently abandoned. The United States Government again reply on the 31st of March at great length, and with arguments which are not easy to meet. A rejoinder dated the 4th of May is sent by the noble Earl (the Earl of Derby) to Colonel Hoffman; and in this despatch a new line of argument is adopted—whether upon the re-considered opinion of the Law Officers or based upon the opinion of a still higher authority I cannot say—but I incline to 1773 the latter opinion; and if I am right I cannot help thinking that that high authority has in this and in some previous cases found himself in the same position as great consulting physicians are not unfrequently placed. The physician finds the patient ill; he is determined to save him. He thinks the treatment must be changed, but he also wishes to do nothing which may endanger the reputation of the family doctors. In this despatch of May 4 it is explained that the Act of 1870 imposed no new condition on the Treaty of 1842, and it is argued that the Treaty contains within itself provisions for which Her Majesty's Government contend, and it is for the first time distinctly stated that the provisions of the Act of 1870 have no force or effect in any foreign State. And, again, on the 7th of May the noble Earl (the Earl of Derby) tells Sir Edward Thornton that Her Majesty's Government do not rest their case on the Act of 1870, but on the general principles of extradition, the language of the statutes of both countries putting the Treaty of 1842 in force, and the care taken to specify in the Treaty the particular crimes for which extradition can be granted. The additional Papers which have been presented contain two more important documents on the execution of the Treaty of 1842—a very long despatch of Mr. Fish, giving the whole views of his Government; and a very able, but not, to my mind, convincing rejoinder from the noble Earl (the Earl of Derby). In this rejoinder the argument founded on the practice of all nations is omitted, and the Act of 1870 is only mentioned to be dropped. But the Foreign Office is again good enough to explain to the Government of the United States the construction of their own municipal law—the Act of Congress of 1848. Though a little rash, it may have been a natural thing to do at the outset of the controversy; but, after an answer had been received from the Government of the United States to the effect that not only the Government and their Law Officers, but also their Judges in Court take an exactly opposite view of the right construction of that Act, it does appear to be a strong and (I will not say ridiculous, but) an anomalous thing for us to continue to explain to them the meaning of their own laws. Then the cardinal question of the case is stated— 1774 namely, that it is an essential principle of extradition as permitted or practised by this country that a person surrendered on an Extradition Treaty can be tried for the offence for which he is surrendered, and for no other offence previously committed; and this is the proper construction of the Treaty of 1842; that it is the meaning which was attached at the time, and which has since been continued to be attached by this country to that Treaty, and that it is the meaning which they had understood was attached to that Treaty by the Government of the United States. It is possibly from the want of legal acumen on my part, but I cannot find a trace of this condition in the Treaty of 1842. It is certainly not there in words; and if it was understood to be there, why was it not expressed in words? The Act of 1843 confirming that Treaty was warmly debated in this House and in the House of Commons. Mr. Macaulay and others expressed great alarm lest false charges should be made and false cases got up merely to get possession of a slave; Lord Aberdeen, the late Lord Derby, Sir Robert Peel, and the Attorney General repudiated the insinuation against the Government of the United States that they would lend themselves to getting up such a false case. But how comes it, if there was an understanding that a surrendered criminal was only to be tried for one offence, and could not be tried for any other, that none of them explained that this safeguard was in the Treaty, although it was not expressly stated. If the condition was in the Treaty, why did Sir Thomas Henry, in his evidence before the Committee of 1868, say that it was a provision in some Treaties and not in others? and why, I should like to know, if the provision was in the Treaty with the United States—in which Treaty it was not—should he recommend it to be expressly inserted in all future Treaties? and why was it necessary so to insert it in the Act of 1870? An ingenious argument is urged to show that the provision was so necessary to the Treaty that it must be in it. I do not see any great force in the point as to the surrender of criminals being limited to a specified number of offences—the chief object of that specification is to prevent a friendly Government having to put all its administrative and judicial machinery into 1775 motion for any petty and trifling misdemeanour: but when that specification is accompanied by a provision that the crime for which extradition is demanded must not only bear the same name in both countries, but must constitute the offence called by that name in the country called upon to surrender, it may in some cases be a useful safeguard against proceedings for a political offence. But when you proceed to argue that the safeguard is incomplete without a provision that no fugitive criminal can be tried for a second offence, it may be a very fair and good argument in itself, as the Committee of 1868 and the Parliament of 1870 evidently thought. It may or may not be a conclusive argument for the future; but no one can pretend that it is such an axiom as could not have been disputed by the negotiators of 1842, who might have thought it a very great impediment to the administration of justice if the condition had been proposed to them—still less that from the mere fitness of things it must have necessarily been of the essence of a Treaty in which nothing is said about it. I see nothing to make me believe that this condition is in the Treaty of 1842. Her Majesty's Government state what has been their understanding, and what they believe to have been the understanding of the Treaty of 1842, and what they believe to have been the understanding, of the United States. The United States Government declare exactly the reverse as being their understanding, and what they believe to have been our understanding. Here we have assertion against assertion. What proofs does either side bring forth? Sir Thomas Henry is the first in these papers to make the assertion that has been adopted by Her Majesty's Government. It is hardly consistent with what he stated to the Committee in 1848, and he brought forward no proof whatever in support of his belief. It remains, therefore, simply an expression of his belief—a statement which no one who knew Sir Thomas Henry could for a moment doubt; but yet only a statement of his own belief. What other evidence does the noble Earl (the Earl of Derby) adduce? A statement made 10 years ago by himself as Secretary of State for Foreign Affairs, and one made on the same occasion by the 1776 noble Lord now on the Woolsack as Attorney General. These statements were obiter dicta during a debate when the two noble Lords were arguing against a provision being introduced which the noble and learned Lord said added a new term to the Treaty of 1842. The statement of the noble Lord—then Lord Stanley—though not quite so clear as he usually makes them, is perfectly consistent with the theory he now holds. The Attorney General's statement is not inconsistent with that theory; but, at the same time, it is also not inconsistent with the opposite theory to which I will presently allude. The words are—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."—[3 Hansard, clxxxiv. 2122.]This is not inconsistent with the view of the noble Earl nor with my own. I also hold that we should have ground of complaint if a foreign country, on receiving a man extradited for one offence, instead of trying him for that offence, should substitute another, or should proceed to try and punish him for that. The difference between us is this—while I believe we should have a right to complain of this proceeding, I contend that under this particular Treaty we should have no right to complain if another country, having bonâ fide tried the man for the offence on which he was surrendered, should then proceed to try him for a second offence; and the words of the Attorney General do not necessarily go further than this. But be that as it may, there remains no proof on the side of the Government excepting these two sentences uttered in the heat of a debate. What proofs are alleged on the other side? First the dicta of text writers. Such dicta are always quoted on international controversies, and I should therefore have thought had some weight. But as they are summarily disposed of in the despatch of Lord Derby as of trifling importance, I will not trouble your Lordships with the quotations, which you can find in Mr. Fish's argument. But there is another witness entirely in their favour whom the United States quote, who is treated with as little reverence as the text writers. It is the noble Lord behind me, who, as Mr. Hammond, was 50 years in the Foreign Office, and who 1777 during half the time the Treaty lasted was the head of the permanent staff of the Foreign Office. He is one who knows all the traditions of the Foreign Office, good, bad, and indifferent—absolutely by heart, and who was lately so gracefully alluded to by Lord Derby as his teacher in foreign affairs. If Mr. Hammond had merely stated his own opinion on the construction which had been accepted by the Foreign Office as to a particular Treaty, I can imagine no stronger witness in Great Britain; but Mr. Hammond expressly stated in his evidence before the Committee of 1868 that his opinion was in accordance with that of the Law Officers. There is another witness, Mr. Mullens, an eminent solicitor, who has been more engaged in extradition cases than anyone. He not only gave his opinion as to the understanding of the Treaty by this country in the opposite sense to the present contention of the Government, but he mentioned a case—that of the Heilbronn, who was tried for a second offence after having been tried for the offence for which he was surrendered—a case concerning which the Government can only answer that they were ignorant of it, and were not concerned in the case. To sum up the evidence given before the Committee of 1868. There were six witnesses. Of these Sir Thomas Henry, Mr. Hammond, and Mr. Mullens gave the opinions that I have quoted, and not one of the other three witnesses gave an opposite opinion. What other evidence is there in favour of the United States Government? As to the understanding which existed in both countries, they have the decisions of Courts in the States, and the cases of personsactually tried for a second offence. There are also the decisions of the Courts of the Dominion of Canada in the same sense—and from what I hear the Government of the Dominion are much concerned, and entirely repudiate the position which Her Majesty's Government have taken. But what appears in the last batch of Papers which have just been presented? Those Papers show three things. In the first place, they show that 11 years ago Mr. Seward informed our Government of the construction which the United States then put on the Treaty, which is diametrically opposite to that now held here, and which disposes of the assertion of the 1778 contrary understanding on the part of the Government of the United States. Secondly, they point to the case of Burley before the Act of 1870, on which the Foreign Secretary, Lord Russell, gave his opinion in communication with the Colonial Secretary, Lord Cardwell, and upon advice of the Law Officers—who I believe were the late Lord Chancellor, who is sitting behind me, and the present Master of the Rolls—that it would be a breach of faith to substitute another offence for that for which Burley was surrendered; but that if Burley were bonâ fide tried for the first offence it would be difficult under the Treaty to question the right of the Government to try him for any other offence, whether such offence was or was not a ground of extradition, or even without the Treaty. Does the Burley case prove that the present contention has always been maintained by the Government of the United States and by Her Majesty's Government? In my opinion it proves diametrically the reverse. Well, what does the Caldwell case prove? The Caldwell case is summed up in the following letter:—Downing Street, May 16, 1871.My Lord,—I have the honour to acknowledge the receipt of your Lordship's despatch of the 20th of February relating to the case of Richard Caldwell, who was surrendered to the United States Government under the Extradition Treaty on the charges of forgery and uttering forged paper, and who is alleged to have been subjected to legal proceedings in the United States for an offence against the laws of that country for which he was not surrendered, and for which he was not liable to surrender under that Treaty. I have been in communication with the Secretary of State for Foreign Affairs as to this case, and the opinion of the Law Officers of the Crown has been taken upon it. Her Majesty's Government are advised that this is not a case in which they would be justified in claiming the surrender of the petitioner from the United States Government. The obligation of Great Britain under the Convention of 1842 is qualified by no other condition than that evidence of a definite kind shall be forthcoming of the fugitive having committed one of the crimes enumerated in the Convention. It appears that such evidence was produced to the satisfaction of the Canadian authorities, and the petitioner was therefore surrendered to the United States Government. It further appears from the decision of the Judge of the Circuit Court of the Southern District of New York, upon the demurrer of the petitioner, that he has been duly indicted for the offence by reason of which he was surrendered, and it seems that he is to be tried for it. Her Majesty's Government are further advised that there is nothing in the Convention which would preclude the 1779 indictment of the petitioner in the United States for an additional offence which is not enumerated in the Convention, so long as such proceedings are not substituted for proceedings against him on the charge by reason of which he was surrendered. The original inclosures which accompanied your despatch are herewith returned in compliance with your request.I have, &c.,(Signed) "Kimberley.—[C. 1529, p. 6.]nless I have committed some great blunder, it appears to me that I have shown that the different legal positions which have been taken by Her Majesty's Government in this matter are not unassailable. It appears to me that the Papers themselves demonstrate that it is absolutely the reverse of the fact that Her Majesty's Government have always maintained the doctrine which it has been attempted to hold by Her Majesty's present Government. I presume that my noble Friend will hasten to assure the House—if he has not already given that assurance to the United States—that this last declaration was made per incuriam, and I believe that any such declarations would pave the way to more easy negotiations for a future Treaty. I do not know whether he will attempt to defend the conflicting assertions as to law which he has been advised to make. But he has one complete answer as regards the Foreign Office—it is in no sense a legal Department. Until this month there has never been a professional lawyer in the Office, and I am not quite sure that the introduction of the legal element into the Office may not be productive of more embarrassment than advantage. Whenever a legal question has arisen, the Foreign Office has been advised by the highest authorities on it—in the case of extraditions the Foreign Office has always acted Ministerially for the Home Office; and therefore if the noble Earl defends the Foreign Office on the grounds that the legal opinions have been taken from others, although it does not clear the Government at large, the answer is complete as respects the Foreign Office. But how about the policy, for which the Foreign Office is clearly responsible? Would it not have been better to delay protesting till the occasion arose, and thus postpone till it was necessary that which committed us, and obliged the United States to commit themselves—and this more especially as there was 1780 not the slightest chance as regards this particular Treaty of danger to the principle of affording an asylum to political offenders? This was the course Mr. Seward took 11 years ago, when, assenting up to a certain point to Lord Russell's doctrine, but going beyond it, he said with good sense—"But this is an abstraction, and I will not deal with what does not arise." But what was the view of Lord Derby? The following letter in reference to the case of Charles L. Lawrence was written in November last by his instructions:—I am directed by the Earl of Derby to transmit to you, for the information of Mr. Cross, a further despatch, which was received on the 16th instant from Her Majesty's Minister at Washington, from which it appears that the United States Attorney General has instructed the United States District Attorney at Now York to the effect that the trial of Lawrence is to be proceeded with on the charge of forgery, for which his extradition was granted, and that if he should be acquitted of that charge the District Attorney is to await further instructions. Under these circumstances Lord Derby would suggest, for Mr. Cross's consideration, whether it would not be advisable that any representation to the United States Government on this subject, should be, in any case, postponed until after the trial of Lawrence for the extradition crime for which he was surrendered, and that any instructions to Sir B. Thornton should be framed accordingly. His Lordship's reasons for this suggestion are that, in the event of Lawrence being convicted of this crime, and not being indicted for any other offence, no representation to the United States Government would be necessary, and that in the event of his being acquitted of the extradition crime, and then indicted for other offences, the opportunity for making a representation to the United States Government would be a more fitting one than at present. In the latter case, also, Her Majesty's Government would be acting with a full knowledge of the course which the United States Government intends to pursue, and would therefore be in a better position to protest, if necessary, than they are at present, as it still appears doubtful whether Lawrence is to be tried for offences other than the extradition crime for which he was surrendered."—[C. 1482, No. 54.]No opinion could be more judicious, and I am perfectly convinced that if this judicious advice had been adopted we should have heard no more of the question, and we should have avoided all the irritating circumstances which now make the negotiation for a new Treaty so difficult. On the other hand, it must be admitted that if this opinion had prevailed we should now be deprived of the society of three American citizens whose surrender has been demanded 1781 but not granted, and who will remain with us for the remainder of their lives or until they shall have been detected in murdering, robbing, or cheating in this country. But the Home Office would not hear of this; they were in such a hurry that their only rejoinder was a direction not only to send off a protest, but to send that protest by telegraph, and they only forwarded their reasons at a subsequent period. Mr. Disraeli announced to the Commons the other day that the Home Secretary is the Chief Secretary of State. He is no such thing. The Secretaries of State are of equal rank, taking formal precedence according to the date of the creation of their respective offices. But in this case the Home Office appears to have assumed some such authority, for not only does it overrule the Foreign Office in a matter which belonged to the latter, but a little later we find the Home Office scolding the Foreign Office for not having made its points with sufficient clearness. The one fault for which I think the Foreign Office is responsible was yielding to the Home Office on a matter on which the latter—perhaps naturally enough—only took the one-sided view. But, whoever is to blame, this question of Extradition has come to a dead-lock. I believe the Treaty has not been put an end to; but it remains a dead-letter. It is clear that neither Government will ask for or grant the surrender of any criminal under it. I hear already of cases where criminals have openly boasted of their safety. We have already this year secured for ourselves the society of three persons against whom very grave charges have been made. The late Lord Derby told the House of Commons that an Extradition Treaty was of much greater importance to us than the United States—especially with regard to Canada. I do not care to enter into the proportionate share of inconvenience which each country—the commercial communities above all—will have to bear, but we must not conceal from ourselves that the evil is not to be measured by the number of Extradition cases which have occurred. It is rather to be gauged by the amount of crime which will be augmented by the increased chances of impunity to the criminal. In these circumstances I trust that the Government will see their way to some mode of extricating ourselves and the United States from this diffi- 1782 culty. Is there no hope that the delay which was asked for last week may result in our being told this evening that the United States are conceding the differences that still exist as to the terms of a new Treaty? The difference which remained when the late Government went out of office was so small that some arrangement ought to be arrived at on it. The Act of 1870 was a good Act, and has produced much good; but can any one say that it had attained the perfection of human wisdom on this matter? It is certainly the opinion of many competent persons that it could be made more elastic as regards the Extradition of ordinary criminals, without in the least degree affecting the right of asylum to political offenders. The two countries have hitherto been prominent in the discharge of the sacred duty of maintaining that right. During the 30 years that the Treaty has existed—although civil war and Fenian disturbances have arisen, neither Government ever dreamed under any pretence of asking for the surrender of political offenders. There is another suggestion which I venture to throw out—it was proposed eight years ago that instead of Treaties we should have a law applicable to the demands of all countries for the Extradition of criminals, without troubling ourselves whether the other countries responded or not. It was considered at the time, and it was decided, that it was better to proceed by Treaties under a general law. But times are now changed. We have Treaties with nearly all the principal countries in the world, except Russia and the United States. If we passed such a law, being of a reasonable character, and somewhat more elastic than the present, it is almost certain that the United States would avail themselves of it, and would, as has already been suggested to them in America, pass a law on their side. It is for the interests of both countries to obtain their own fugitive criminals, and it is not in their interest to monopolize the possession of the fugitive scoundrels of other countries. I should prefer a new Treaty cordially agreed to; but I throw out this suggestion in case Her Majesty's Government find difficulties arising in negotiation for a Treaty, which would not occur in separate legislation. But whatever the course may be which Her Majesty's Government think fit to pur- 1783 sue, this House will agree with me in the conviction that the Government will not be satisfied with having written a smart argumentative despatch to conclude the discussion; but will apply themselves heartily to the work of changing a state of things which Sir Robert Peel eloquently denounced more than a quarter of a century ago as a public disgrace—namely, that two such countries as Great Britain and the United States should each consent to remain a refuge for the criminals of the other.
§ THE EARL OF DERBY
My Lords, before I go into the main question which the noble Earl (Earl Granville) has raised, I may be allowed to refer to the request I was reluctantly compelled to make on last Friday night for a postponement of this discussion until to-day. I had up to the present time hoped to be able to make a statement this evening material to the actual condition of the facts. I was entitled to entertain that opinion from a communication made to me from a quarter which I could not doubt. Since Friday, however, I have received no communication on the subject, and I am not at present in a position to make any such statement to the House as I had hoped to do. My only justification, therefore, for asking for delay on Friday last is that I did not ask it for my own convenience, or in the interest of the Government, but for the interest of both countries. The question which the noble Earl has raised has been so long and so often before the public that all the facts and the arguments on both sides, embodied in the Correspondence lately laid before the House, are presumably familiar to your Lordships and to all who have cared to acquaint themselves with the subject. I propose, therefore, in explaining the course which the Government has taken, to confine myself as nearly as possible to a general statement of the principles on which we have acted. Putting it briefly, the controversy between the American Government and ours is this: We take different views of what is meant by Extradition and of the construction which is to be placed on the Treaty between the two countries. The American contention is that when the forms prescribed by Treaty have been gone through, and when Extradition has once been effected, the person so extradited is for all purposes in the hands of the Government 1784 which has received him, although he may have been acquitted of the charge on which the Extradition was granted—although in the original demand for his surrender no mention was made of any other imputed offence—and even although the offence for which he is put on his trial a second time may be one not included in the list of Extradition crimes. They argue, in short, that, once in their hands, and having been tried for the Extradition offence, he remains in their hands for all other purposes. We, on the other side, contend that a person who has taken refuge in England and has been surrendered after certain legal proceedings for the purpose of being tried on a specific charge, is only lent, so to speak, to the Government which claims him for the purposes of that trial; and if upon the charge so brought he is not found guilty, then we say he is entitled to his freedom and cannot be claimed again, except after a repetition of the preliminary inquiry which is necessary before Extradition is granted—which, of course, implies that he must have an opportunity of returning to England. These are the two opposite views which are represented in the Correspondence, and which each side has endeavoured to support by argument. The American Case seems to rest mainly on this—that the Treaty contains no express stipulation on the subject—that it simply provides a method by which the accused person shall be surrendered to the Government claiming him; and that, in the absence of anything said to the contrary, the Government or the Courts of Law, once legally in possession of the man, are personally entitled to deal with him, subject to no restraint except that which is imposed by its own laws. The Americans further argue that on certain occasions the right which they claim has been exercised and no objection made, and that it has been exercised in England, by English Courts, as well as in the United States. We admit that the Treaty contains no stipulation on the subject—the case, as we conceive, not having been provided for by those who framed it. But, on that part of the case, our answer is that the right which they claim is contrary to the general spirit and intention of the Treaty; contrary to what has always been understood as the practice; contrary, also, to the principles laid down both by the British Parliament 1785 and the American Congress. We contend that the Government surrendering an accused person does so only after having satisfied itself by means of a judicial inquiry that there is a reasonable primâ facie case which justifies the putting him on his trial for an offence named within the Treaty—just as no man can be tried here without first being committed by a magistrate, or, in some cases, without a true bill being found against him. It is also necessary that it should be shown to the satisfaction of the magistrate so committing the person for Extradition that the offence of which he is charged is included among Extradition offences and is not political in its character. Now, we say that both these safeguards are absolutely done away with if it is understood that a man extradited for one offence can be tried for another without a fresh extradition being made. A man is charged, say, with forgery. Extradition is granted. He is tried in America, and acquitted. It is clear that if all the facts which came out on the trial had been known to the committing magistrate he would not have been extradited at all on that charge. What right, then, has the State, which has only got hold of him as presumably guilty of that offence, to deal with him on another charge in a way that they could not have done if he had not been in the first instance unjustly accused? They are, in such a case as I have supposed—I use the phrase in a legal and not in a moral sense—taking advantage of their own wrong. They have already subjected him to a forced deportation across the Atlantic and to the inconvenience of a trial which has ended in his acquittal, and they then take advantage of having him in their possession—which, as the facts have turned out, they never ought to have had—to try him for something else as to which, if he had remained in England, it is quite possible that extradition would never have been granted. If we admit, as we must, that the Treaty is silent on the subject—that it includes no express words to meet this class of cases—it seems to me that we are fairly entitled to contend that this is not a proceeding contemplated when the Treaty was framed or reconcilable with its general spirit. The Treaty says—"Before a man is surrendered to take his trial there must be a preliminary inquiry in the country which gives him up." 1786 The American construction of the Treaty says—"He is entitled to such preliminary inquiry in regard to the first offence for which we put him on his trial, but for any other offences, however many or of whatever kind, there need be no preliminary inquiry whatever." Now, that is just the one position which seems to me at least logically untenable. You may argue for the necessity of preliminary inquiry in all cases; you may argue on the other hand that such investigations are an unnecessary form, because if you trust the Government to which you surrender the man, you may be assured, without such inquiry, that they will try him fairly, and if you do not trust the Government to deal fairly, you should not surrender him at all. Either of these alternatives, I think, is fairly defensible; but it is not consistent with either theory to say—"We will give the accused the security of a previous inquiry in regard to the first offence for which he is tried, but we will not give it him in regard to any other charge subsequently brought against him." But as regards the intention of our Government and Parliament we are not left to mere abstract reasoning or inference. We know by the Act of 1870 what was and is the mind of the Legislature on the question of principle involved. The Act of 1870 provides that no surrendered fugitive shall be tried in the country which has demanded his extradition for any offence other than the extradition crime proved by the facts on which the surrender is grounded. Words cannot be plainer. Now, I do not quote that Act, as I have been understood to do in America, as having a retrospective effect on Treaties previously concluded. I fully admit that there is a proviso which, though obscurely worded, seems to except, and no doubt was meant to except, the case of Treaties actually in force. I have a right to say that it is obscurely worded, for three Judges who endeavoured to construe it expressed doubt as to its meaning. It could not, in fact, be otherwise; because if the provisions of the Treaty of 1842 had been retrospectively affected by the Act of 1870, it would have been a matter of necessity either to alter the Treaty or to modify the Act. But I do quote the Act as showing what is the principle which Parliament has laid down, and also as showing that that principle was not con- 1787 sidered inconsistent with the Treaty. If it had been so considered, does anybody suppose that the two would have been allowed to remain side by side? We could not maintain—the Government of the day never surely intended to maintain—in a question affecting the administration of justice, one rule for countries which had made Treaties with us before 1870 and another for those that had not. If, therefore, we left the Act of 1870 to stand side by side with the Treaty of 1842, it could only have been because we did not think them inconsistent in principle the one with the other. But I do not rest on that alone. In the English Act of 1843, passed immediately after the conclusion of the Treaty, the Secretary of State is authorized to order the delivery of the person committed to an officer who is "to convey such person to the territories of the United States to be tried for the crime of which such person shall be so accused." And not only that, but the United States Legislature adopted almost identical language. The Act of Congress of 1848 follows the very words of ours, and says that the accused person who is extradited from America shall be delivered up to be tried for the crime of which such person shall be so accused. Now, without wishing to lay too much stress on a phrase, that seems to me very nearly equivalent to saying that he is not to be tried for any other crime except that of which he is so accused. The words are not required, and, indeed, have hardly a meaning, if you put any other construction upon them. The noble Earl (Earl Granville) says—"The United States do not put that sense upon it, and you are very bold if you question their construction of their own statute." But it is written in English, it is following the words of the English Act, and surely an Englishman may venture to construe plain words in his own language? Sir Thomas Henry advised that in a new Treaty, words should be inserted to make the meaning plainer, and the noble Earl wants to know why he did so if they were plain already? But surely there is nothing inconsistent in saying that certain things are laid down in a Treaty, but that it would be desirable that they should be more clearly expressed. It is contended, however, that it is no longer open to us to maintain the construction of the Treaty for which we argue, because we ourselves 1788 have on various occasions accepted a different interpretation. Now, I do not want to go into more detail than I can help, but I will take these various cases one by one. There is the case of Heilbronn. He was surrendered by the United States on a charge of forgery, and tried in a British Court for that offence. He was acquitted of forgery, but convicted of larceny. He never appealed against the conviction, nor did the United States take the matter up; and, as a matter of fact, there is no reason to suppose that the circumstances of the conviction were even known to the Government here. It cannot be said, therefore, that in this case there was any admission on our part. The Court was not able to take into consideration the question of Treaty, and it does not appear to have been ever before the Court. The question, in fact, was never decided, because it was never argued or raised. The case of Bouvier was a case which arose under the Extradition Treaty with France. In that case again no action was taken or required to be taken by the Government, the French law making it impossible that the man should be tried for any offence except that on which he was extradited. The only noticeable point in this case is that the Attorney General for the time being, in the year 1872—that is in a Government of which the noble Earl opposite was a Member—is reported in the newspapers of the day to have said that—It was the law of France, and of every civilized country, that a man given up for an extradition offence should not be tried except for the offence for which he was given up. For this Government to give a man up otherwise would be a most serious infringement of the right of asylum.We have never laid down the principle more strongly. I do not see how it is to be reconciled with the language held in the Canadian cases—but that is not my business. The Canadian cases are six in number. In two of them the prisoners had been surrendered by the United States, and were tried in Canada; and the Courts seem to have held that being in custody they were liable to be tried for any offence which the facts might support. In two others, application was made by the United States for the surrender by Canada of prisoners who had taken refuge there, and the Canadian 1789 Courts held that they were not justified, by the mere fact that the new Act of 1870 did not secure these against trial for any other offence, in refusing to give them up. That is not a decision on any other point except the wording of the Act of 1870. It does not bear, as far as I can see, on the question of Treaty construction at all. In all these four cases, if I am right, there is absolutely nothing to show that the Home Government was consulted at all; and I need not say that the decision of a Canadian Court of Justice cannot bind the Government here, which probably knew nothing of the matter. The two remaining cases were those of Burley and Caldwell. Burley was surrendered by the Canadian Government to the United States on a charge of robbery. It was represented to the British Government that there was an intention of trying him on a charge of piracy, which had not been mentioned in the demand for his Extradition. Upon that the Law Officers were consulted; they reported, no doubt, in a sense partially favourable to the present American construction of the Treaty. But they advised that it was our right to protest against any attempt to change the ground of accusation. A protest was made accordingly; and led to a reply from Mr. Seward which is so important that I wish to quote it at length—Mr. Seward to Mr. Burnley.Department of State, Washington,March 20, 1865.Sir,—I recur to your note of the 15th of March, which relates to P. G. Burley. 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, 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. 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.I have, &c.,[C. 1528. No. 6.] "W. H. SewaRd.1790 Mr. Seward, therefore, was under the impression—though I believe it proved to be a mistake—that piracy was among the charges on which Burley was surrendered. It does not seem that the Protest was renewed, and our official knowledge of the facts ends here. Mr. Fish in his recent Note says that he was tried for assault with intent to kill; but that is a fact of which, till this Correspondence, we had no information. The case of Caldwell is generally similar. He was surrendered by the Canadian Government on a charge of forgery. He was subsequently indicted in the United States for bribing a Custom-house officer, as well as for the forgery. He pleaded that the Court ought not to take cognizance of the offence; the Court overruled the plea on the ground that it was one for the Governments concerned to entertain, but which could not be dealt with by a Court of Law. He therefore appealed to the Canadian Government. The matter was referred home, and the Law Officers advised that the case was not one in which Her Majesty's Government would be justified in claiming his surrender. He had at that time not been tried for the Extradition offence; and it was intended to put him on his trial for that offence. The decision not to interfere in the matter was communicated to the Governor of Canada; and there the case ended so far as we are concerned. Now, I am not about to deny that these two cases show clearly enough that the view of our international duty taken by the then Law Officers is different from that which we have been advised to adopt. But I deny altogether that that difference of views disposes of our case. I speak with the highest respect of the Legal Advisers of the Governments of 1864 and of 1870, but they would not claim that their opinion could bind their Successors. And observe this—that though they do not advise that in certain cases a claim should be pressed—though they express doubt whether it ought to be pressed—yet in no part of this Correspondence has the claim ever been abandoned. We have never said to the American Government that we thought it one which could not be justly advanced. We have simply forborne to press it in certain cases. And it is possible and conceivable that other motives may have operated besides those of a judicial or administrative character. I 1791 can quite understand that, considering the state of things that existed between England and America, both in 1864 and 1870, reasons of a political character may have indisposed the then Governments to press any demand on the United States as to which in their minds any doubt may have existed, or as to which there was a moral certainty that they would not be acceded to. I am not attacking what they did; but I contend that to waive a right on one occasion, or on two, is not to abandon it; that the opinions of the Law Officers of one Government, however deserving of respect, are not international documents; and that as between the United States and England nothing has passed which amounts to an abandonment of the claim which we put forward in this Correspondence. I now come to the question which I have heard raised, and which has been raised by the noble Earl this evening—whether, even admitting our construction of the Treaty to be defensible, we have asserted it in the right way. It is argued that we ought to have waited until some actual violation of the Treaty, as we construe it, had occurred, and that we had no right to call on the United States Government to abandon their construction of it—that we ought, in short, to have taken no action unless some person surrendered by us was actually put on his trial a second time. My answer is, that is shutting the door after the steed is stolen. The question is not one of law, but of reason and common sense. When it is evident that an engagement is understood by the two parties to it in a different sense, the sooner that difference is cleared up the better. What would happen if we took the course suggested? Why, that the United States Government would, sooner or later, act on their presumed right, as they had given us notice that they would do; that we should dispute the legality of their action, and that we should be obliged by our expressed opinion to demand that a prisoner actually in their hands should be given back. That is a demand with which in their view of the case they could not honourably comply—and there you have a diplomatic complication ready made, and which it would be impossible to determine without the defeat, if not the humiliation, of one or the other party. Is it not better that we should deal with 1792 it while it remains an abstract question? I do not think it a wise or prudent policy to incur an inevitable and serious risk in the future in order to secure a respite from trouble at the moment. I hear it said, again, that the risk run by conceding the question at issue is trifling; that the inconvenience of passing it by is great, and that we had better have settled the matter anyhow than have left it open. My Lords, I cannot admit that, as English Ministers, we are justified in treating as immaterial a principle on which Parliament, six years ago, laid so much stress as to embody it in express terms in an Act of Parliament, passed after much inquiry and debate. Parliament might release us from the obligation which it has imposed, but we cannot release ourselves. And this principle is not unimportant. It really involves the whole question of political asylum. I have no wish to talk clap-trap about the right of asylum, but we know how strongly the question has taken possession of the public mind in this country. Now, take such a case as this—a French refugee, mixed up in the affairs of the Commune, is asked for by his own Government, bonâ fide, on a charge of a non-political character. He is surrendered, he is tried, and acquitted or condemned, as the case may be. But while in the hands of the French authorities on that charge, they discover that this is the man they have been looking for on account of political disturbances, and after his acquittal they proceed to try him for that. Would not that be a case which, however worthless the person might be, would excite strong feeling in England? And yet what security have you that such a case might not occur if you abandon the principle that the extradited person ought to be free to return after trial on the extradition charge? It is said, I know, that we are discussing the question only with the United States, and that there is no fear of any question of the kind arising with the United States, because their feeling in such matters is the same as ours. To that I have a double answer. In the first place, I do not think that, looking at it as a matter of business—I do not think that it is wise to rest upon the supposed good disposition of other Powers as a sufficient substitute for those guarantees which you consider necessary as private prisoners. 1793 We do not do our ordinary business as private persons in that way; we do not suppose everybody is going to cheat us, but when we pay money we generally take a receipt. There is another consideration. We have again and again said that the intention of the American Government is not sufficient, for the separate States may act independently of the Federal Government. It might, therefore, very well happen that, whatever the wishes of the Executive might be, they would have no power to prevent the man from being tried. Besides, we are not laying down a principle that is to govern our arrangements with the United States merely, but with all civilized countries in the old and the new world, and it would be a very invidious distinction to say you would have one law to govern your relations with America and another to govern your relations with other Powers. You are bound to consider, not only what is likely to happen in reference to America, Trance, or Germany, but in any one of those countries with which we have Treaties of this kind. Such is in brief our case. I will not take your Lordships through the argument in detail, as it is set out in the published Correspondence. But I may remind you of one fact—that there have been negotiations going on for a new Treaty, which extended over a considerable time. In the draft of that new Treaty we proposed an Article embodying the principle for which we are now contending, and the Government of the United States, so far from objecting, accepted the Article, and did more: they proposed to strengthen it by words which should make the meaning clearer and more precise. The failure to conclude a new Treaty turned on an altogether different point; but upon this point the Governments were absolutely at one. It is no doubt one thing to say this or that should be put in a Treaty; another to say it is there already; but I think the fact I have stated is evidence that there is nothing in principle unreasonable in the view we have taken, and also—what is quite as important—it shows that there is no such difference between the two countries as should prevent the negotiation of a new Treaty. The noble Earl concluded his address by an appeal to me that we should do what we can to put an end to the inconvenience that must arise out of this transaction. With 1794 the concluding sentences of the noble Earl's speech I entirely concur. Nobody is insensible on either side the water to the inconvenience that would be caused by an even temporary suspension of extradition. Whether the inconvenience will be greater to us than to the United States it is no use disputing. The two countries have absolutely the same interests, and the differences are not of a kind to be very difficult of arrangement. We shall at once renew the negotiation formerly interrupted; it will be an advantage to all parties, for everybody admits that the old Treaty is imperfect and unsatisfactory, and what I think we ought to aim at is the establishment, if it is likely that the negotiations will last some time, of what diplomatists call a modus vivendi—a provisional arrangement which shall prevent rascals from benefiting by the falling out of honest men. I do not think it is a disadvantage that this question should have arisen. There is an ambiguity in many respects in our Extradition Treaty with the United States, and there are many reasons for superseding it by a new one, and we shall do all in our power to see that that is done.
THE EARL OF KIMBERLEY
said, that as to the right of asylum there could be no dispute as to maintaining our protection to political offenders who might find their way to our shores—the only question was what would be most efficacious for that purpose? He quite agreed with the observations of the noble Earl on the duty of the Government to maintain the right of asylum; but the point in question was not whether the right of asylum should be maintained, but whether the particular mode in which the Government had dealt with the question was the right one. The argument was, that if our Government surrendered a criminal for a particular offence it was not open to a foreign Government to take advantage of its own wrong and try him for another. But it seemed to him that our duty was to refuse to deliver up any offender who, there was reason to believe, would be put on his trial for a political offence; but in the case of a person being surrendered for one crime, not political, and being tried for another of a similar kind he did not think we had any right to interfere. If a man had committed an offence why should we interfere to protect him against punishment? All 1795 that was required was that we should take care that a person delivered up should not be tried for a political offence—and, as to all other cases, that he should be primâ facie an offender. The noble Earl seemed to lay down the proposition that the Government of the United States ought to conform their interpretation of the Treaty of 1842 to the Statute of 1870. But so far as the Treaty was concerned the Statute might be put aside—for a municipal Statute could have no effect on a Treaty between nations contracted 18 years before—it could neither modify terms already embraced in the Treaty nor introduce new conditions. It was the common interest of all civilized people that crime should be punished, and it did not seem to him to be our duty to scrutinize narrowly the criminal law of foreign countries: all we had to do was to guard against criminals being tried for political offences in addition to the crimes for which they were surrendered. The Treaty itself was the only document which could properly be taken into consideration in forming an opinion on the subject. Now, in the Treaty the sole condition laid down for the surrender of a criminal was that there should be sufficient primâ facie evidence shown to put him on his trial, and if any other condition was intended to apply the absence of all mention of it was incomprehensible. Surely the natural presumption in this case was that no condition other than that laid down in the Treaty was intended to take effect. But if the view of the case taken by the noble Earl the Foreign Secretary was correct, the result would be that in every case in which there was a plurality of charges against a fugitive from justice who might take refuge in this country, that the country claiming his extradition would be put to the trouble and expense of bringing over to this country all the witnesses to establish a primâ facie case against him on each charge; else, if acquitted or not brought to trial on one charge, he would escape from them all; and he could not see what possible interest we could have in securing him that immunity. The United States Government very justly remarked that the view taken by our Government had not always been adopted in England. Indeed, he did not understand how the noble Earl opposite, in view of the cases before him, could have asserted, as he 1796 did in one of his despatches, that one of the essential principles of extradition, as invariably practised in this country, was that an extradited person could only be tried for the crime on which he was surrendered. The fact was that two previous Governments had taken a different view, and in making the statement which he did the noble Earl certainly gave an advantage to the American Government. He (the Earl of Kimberly) could not help thinking that the error of the Foreign Secretary was due to the great haste with which the matter was considered—only two days having elapsed from the time the subject was brought under the notice of the noble Earl till he committed himself to the view, taken without sufficient inquiry, as it appeared, by the Home Secretary. The Law Officers were not consulted till a later date, and it was rather a singular fact that their views were never referred to in the Correspondence; and he inferred from that that their view was not quite in accordance with that taken by the Home Office. He regretted the haste with which the noble Earl had taken action in the matter. In his last despatch the Foreign Secretary maintained that the claim to interpret the Treaty in a particular manner amounted to a breach of contract; he could not understand how a contract could be broken until some act was done by one of the parties in violation of its conditions, and he was inclined to think that if the noble Earl the Foreign Secretary had waited until he saw what the issue would be, neither Lawrence nor Winslow would have really been tried for any other offence than the one on which they had been surrendered. And considering that the Treaty had been executed without difficulty for a period exceeding 30 years, that there was no actual breach of the Treaty, and looking to the disposition which the United States Government had shown not to press their view to the utmost, he believed that the noble Earl might, with a little more patience and forbearance, have saved the Treaty from the abrupt termination at which it had, unfortunately, arrived.
said, he could not help thinking that in this discussion the importance of what was called the right of political asylum had been exaggerated in a manner which was likely to lead to dangerous consequences. He admitted 1797 that it was not fit that this country should give up to the vengeance of a tyrannical Government men who had risked their lives to obtain liberty for their country; and no doubt we should be utterly disgraced if we surrendered men who had stood out against such a Government as that of the late King of Naples, or against such an act as the partition of Poland. But he thought it was a mistake to push so far as there seemed now to be a disposition to do, the principle that we were bound in all cases to take care that persons who had been guilty of political offences should enjoy a secure asylum in this country. He held that the attempt to disturb by force a settled Government which performed, though perhaps imperfectly, the duty of all Governments in maintaining peace and order, was a crime which, unless provoked by extreme oppression, was not only legally and technically, but morally, one of the greatest that men could commit. Looking at the enormous amount of evil which arose from civil war, he said that those who acted in that way were not entitled to the sympathy of mankind. Therefore, he thought it was a great mistake to say that because there was some possible danger that in some very unlikely case a man might be punished for what was in itself an offence—namely, resistance to a settled Government—in consequence of measures adopted to protect society against ordinary criminals, they were to neglect to make the arrangements with other countries which were absolutely necessary for the prevention of crime. The perils to society and to the maintenance of order would be very great if they were to push to the extreme, which had been recommended from both sides of the House, the claim to political asylum at the risk of preventing the surrender of ordinary criminals. They should take care how they established a state of things which would offer enormous inducements to men either in England or in America, who might think there was an opportunity, by some great crime, of realizing a large sum of money and then going to the other side of the Atlantic, to enjoy their spoil in peace. He found from the Correspondence that the Secretary of State contended that no man should be tried in the country to which he was surrendered except for the one offence on which his 1798 surrender had been demanded. He believed that the American Government were perfectly right in saying that there was no provision of that kind in the Treaty of 1842, and that in the absence of any such provision we had no right now to introduce that rule. But independently of this conclusive objection, as he thought it, to the course of the Government in this matter, he thought it was also objectionable on other grounds. Was it desirable, when they surrendered a man who was bonâ fide accused of one particular offence, that he should not be tried, convicted, or punished for any other offence which in the course of the proceedings it might come out that he had committed? He said that that was contrary to the common interests of all civilized society. A remarkable case lately occurred which proved the inconvenience of such a rule. A number of men were tried in this country for a most atrocious crime on board the Lennie. Some of them were convicted, and were most properly hanged; but with respect to the others, the evidence given on the trial was insufficient to convict them of murder, but clearly proved they had been accessories after the fact, and because this was not one of the crimes for which offenders could be given up by our Extradition Treaty with France, they entirely escaped from punishment. The inconvenient consequences which must follow from adopting the view of Her Majesty's Government were shown by the circumstances of the case which had led to this discussion. Winslow had been charged with having committed 14 or 15 distinct acts of forgery; but witnesses had been sent to this country from the United States in support of one charge only, as needless expense and trouble would have been incurred in sending more. In the event of his being surrendered he ought, in the view of Her Majesty's Government, only to be tried upon that one single charge; and therefore if, through the breaking down of the evidence, or some technicality of the law, he succeeded in escaping from conviction upon that one charge, the United States Government would be precluded from trying him upon any of the other charges, and the end might be that a notorious criminal might get off altogether. Such a result would not, in his opinion, be 1799 for the advantage of the civilized world. The subject seemed to him to have been dealt with upon a wrong principle—that of an undue anxiety for the security of political offenders. He did not mean to say that in any case persons charged with political crimes ought to be given up to be tried for them. Although he considered—as he had already said—that the attempt to overthrow by violence a settled and even tolerably good government was a very heinous crime, he quite agreed that it was not one for which a man charged with it ought to be surrendered if he had taken refuge in that country. But it was quite a different matter to contend that, having been guilty of sedition or rebellion, they ought to protect a man from being given up to be tried for murder or for forgery. This seemed to him to be pushing the principle of protecting offenders to an absurdity. By doing this we were now left practically without any system of extradition between this country and the United States, and taking into consideration the close relation that existed between the two nations, and especially the position towards each other of the United States and Canada, the evil that would result from this immunity of fugitive criminals would be enormous. He was, therefore, of opinion that the Government had made a very unfortunate mistake in the course they had taken. He must add that he thought the mistake aggravated by an excuse offered for what had been done. It was with much regret that he heard the noble Earl opposite say that our action on this subject must be largely influenced by a feeling of sympathy for political offenders. If the people of this country were unduly influenced by that feeling it was the duty of the statesmen and the leading men in both Houses of Parliament to endeavour to set them right on the point, and to show them that it was not for the sake of maintaining the freedom of political offenders, on behalf of whom, too often, an undue amount of sympathy was excited, that we should run the risk of allowing ordinary criminals to escape a just punishment. There was another and a very important point on which he wished to make an observation. He had observed with great regret that the Papers on this subject which had been laid before Parliament afforded an ad- 1800 ditional example of a mistaken system which had grown up of late years, under which the differences of opinion entertained by the various Departments were exposed to the whole world. It appeared to him that that practice was calculated to break down and destroy the authority of Government, which was one and undivided in responsibility, and it was highly undesirable that where a difference of opinion existed its existence should be exposed to the knowledge of the world. The former, and, as he conceived, the proper, rule had been to consider the Government, as a whole, responsible for every measure of all the departments of which it was composed, and therefore not to publish discussions between these departments as to what was to be done. It had always been the practice, when the course to be pursued on any subject had been settled, to embody the result in a letter from one Department to another; but it was quite a new practice within a few years, and a most unfortunate one, to include in the Papers laid before Parliament the preliminary correspondence between the Departments by which the result was arrived at. The inconvenience of the practice had been illustrated in the present case, where the United States Minister had been able to quote the opinion of one Department against that of another.
§ LORD HAMMOND
My Lords, I should not have troubled your Lordships with any observations on the present occasion, if the evidence which I gave before the Committee of the House of Commons in 1868 had not been so much alluded to in the Correspondence presented to your Lordships' House. I, of course, was not a Member of that Committee; but I was in constant communication respecting it with my much esteemed and lamented Colleague, Mr. Edward Egerton, who, as Parliamentary Under Secretary of State, represented the Foreign Office on the Committee.
The object for which that Committee was appointed was not to modify or set aside existing Treaties of Extradition, but rather to devise means for negotiating and concluding other similar Treaties which should not be subject to discussion and objection in Parliament, such as had proved fatal to the Treaties concluded with France in 1852 and with 1801 Prussia in 1864; and it was suggested to the Committee that the precedent of the Seamen Deserters Act might be followed, which defines the condition and the process—namely, an Order in Council, by which such deserters might be returned to their ships; and that accordingly an Act of Parliament should be passed, setting forth the terms on which this country would grant Extradition, and that then Foreign Powers should be invited to accede to its conditions, whereupon an Order in Council would be issued, bringing the Act into operation as regarded the acceding Power without further reference to Parliament.
The attention of the Committee was specially directed to two points—one, that political offenders should not be surrendered; the other, that ordinary criminals should be exempted from being tried for any other than the offence for which they might have been given up.
Six witnesses were examined by that Committee—M. Treitte, an eminent French lawyer, whose evidence bore on the law and practice of France in regard to Extradition; Mr. Farrer, the present Secretary of the Board of Trade, whose evidence was mainly, if not entirely, directed to the working of the Merchant Seamen Deserters Act; Sir Thomas Henry, late Chief Magistrate of Bow Street; Sir Henry Holland, the then legal adviser of the Colonial Office; Mr. Mullens, an eminent solicitor, fully conversant with the practice in cases of Extradition; and the Permanent Under Secretary of State for Foreign Affairs who has now the honour of addressing your Lordships.
As regards the Extradition of political offenders, there was no difference of opinion between the witnesses. They all agreed that it was a thing not to be thought of, as being repugnant to the general feeling of all nations; and it may not be amiss to cite a passage in the Message of the President of the United States in recommending to the Senate to adopt the Treaty of 1842, in which he says—The object has been to exclude all political offences or criminal charges arising from wars or intestine commotions; treason, or misprision of treason, libels, desertions from military service, and other offences of similar character are excluded.As regards the exemption of ordinary criminals from trial for offences other 1802 than those for which the Extradition might have been granted, there was no very material difference of opinion between the witnesses. They all agreed that it was a thing to be provided against; but two of them—Mr. Mullens, speaking from his own experience, and myself, speaking on the authority of the Law Officers of the Crown in Burley's case—expressed a decided opinion that provided an extradited criminal was bonâ fide tried for the crime for which he was given up, there was nothing in Treaty or in practice to prevent his being afterwards tried for any other offence. This proviso is consistent with the English Act of 1843, and the American Act of 1848. I do not think that either Sir Thomas Henry or Sir Henry Holland dissented from this opinion, though they objected to the practice, in which objection the other two witnesses concurred.
I confess I was surprised at no allusion having been made except in the American portion of the Correspondence to the fact stated by me that the opinion which I gave rested on the opinion of the Law Officers of the Crown.
The Committee reported their opinion that provision should be made on this point; and this was done by the 2nd clause of the 3rd section of the Act of Parliament of 1870; but the Committee did not recommend that this provision should be applied to existing Treaties, and as if to guard against any supposition to the contrary, a clause was inserted in the 27th section of the Act, saving from its operation anything in existing Treaties inconsistent with it.
I cannot understand how it can be contended that an Act of Parliament which neutralized the effect of an existing Treaty is not inconsistent with it.
But Her Majesty's Government say that independently of the Act of 1870 there was a generally-received understanding on the subject such as that for which they contended. It is singular that no allusion was made to this understanding during the interval that elapsed between 1842 and 1875. The American Government distinctly deny the existence of any such understanding; which, indeed, could not be operative as against the United States, where the several States of the Union are only bound to respect Treaties sanctioned by the Senate and thereupon promulgated by the President; and I am bound to say that I 1803 never heard of its existence, which I could not have failed to do if it had been appealed to, and been resisted, as it would have been then as now, by the United States, in which case it must necessarily have come before me.
But with Lord Russell's despatch of 1865, referring to the opinion of the Law Officers in the Burley case, with my opinion in the same case given on their authority in 1868 before the Committee of the House of Commons, and with Lord Kimberley's despatch of 1871 in the Caldwell case before them, and with the fact that no reference was made to it before the Committee of 1868, I am wholly at a loss to conceive how Her Majesty's Government can contend, as they do, for the existence of an understanding inconsistent with the precise terms of the Treaty of 1842. I would, moreover, observe, that under the 7th Article of the Treaty concluded with France, on the 28th of May, 1852, and signed by Lord Malmesbury and Count Walewski, but which Parliament did not sanction, a person might be proceeded against not only for the crime for which he was specifically given up, but also for any other Extradition crime described in the Convention.
I must beg your Lordships' attention to the mischievous tendency of such a contention as that an Act of Parliament can set aside a Treaty of long standing, which had been sanctioned at the time of its conclusion by a previous Act, and acted upon accordingly. This is not a Party question, my Lords, to be dealt with on Party grounds. It is one in which we are all equally concerned, for it involves the interest and honour of the country. If, as is contended, Parliament, as the supreme legislative authority in the country, can set aside a Treaty, how can we dispute the right of the legislative authority of another country, whether exercised through a Chamber, or existing in the Chief Magistrate of the country, to do the same? and, if so, what security is there for the maintenance of Treaty engagements between States?
We all remember the indignation with which a few years ago a pretension to set aside a provision of the Treaty of 1856, by one of the Powers parties to that Treaty, was received; and we all remember the solemn Protocol of January, 1871, by which such, a pretension was 1804 repudiated by all the great Powers of Europe.
As matters now stand, there is practically no arrangement in force for the Extradition of criminals between this country and the United States. This may not be attended with much inconvenience as regards England and the United States, the countries not being conterminous; but the case is different as regards the Dominion of Canada, and it may be hoped that some means may be found by which an arrangement can be arrived at.
If without offence I might offer a suggestion, I would say that under existing circumstances Her Majesty's Government would do well at once to denounce the 10th Article of the Ashburton Treaty, which they are enabled to do by the 11th Article of the same Treaty, if the United States' Government have not already denounced it. It is hopeless to attempt to build up a new Treaty on the ruins of the old one. If in course of time both parties should feel the inconvenience of being without an Extradition Treaty, it may happen that the Government of the United States may be induced to look more favourably on the Act of 1870. They seem already disposed to accept, though in a somewhat modified shape, the condition of the 2nd clause of the 3rd section of that Act; and if they should waive their modification, a Treaty might be concluded without the necessity of having recourse to a fresh Act of Parliament to bring it into operation. The other details of such a Treaty would probably cause little difficulty; as though they might not be so extended as the Act would allow, they might not go beyond the limits of the Act; and so the Treaty might be brought into operation by Order in Council without further reference to Parliament.
I have to apologize for having occupied so much of your Lordships' time. My excuse must be the interest that I naturally feel in all matters that bear upon the relations of this country with foreign Powers, and the anxiety which I no less naturally feel lest any imputation of remissness in regard to such matters should attach to an Office with which it has been my pride and my happiness for so many years to be connected, and whose especial duty it is to watch over the Treaty engagements of the 1805 British Crown, and to see that they are scrupulously observed not only by foreign Powers, but also by ourselves.
§ LORD COLERIDGE
said, he entirely concurred in opinion with the noble Earl who raised this discussion (Earl Granville). When the case of Caldwell occurred, his right hon. and learned Friend Sir Robert Collier was Attorney General, and he himself was Solicitor General. He then held the opinion—which he still entertained—that there was no ground for the view which had been maintained by the noble Earl the Secretary of State for Foreign Affairs. It happened, too, that the proceedings in the French case which had been referred to (Bouvet) were taken under the advice of himself, as Attorney General, his learned Friend the present Master of the Rolls being then his Colleague as Solicitor General. They were both of opinion that the view brought forward to-night by the noble Earl near him (Earl Granville) was the true view which this country ought to maintain on the subject now under discussion. He and his learned Friend had in other cases also to advise on their own responsibility the Executive Government of that day, and as to the true meaning of the Treaty of 1842 and the Act of 1870, and it never entered their minds that the Treaty or the Act bore the narrow construction now put upon it by the Government. Whether the opinions held by him and his learned Friend were right or wrong, others of course must determine, but at all events those opinions were not taken up lightly or for any political motive. He had always been of opinion that the Act of 1870 could not in any fair construction be considered to have any bearing on Treaties which under statutes previously passed themselves claimed the force of law. Indeed, his argument in the French case was that the French Treaty was in no way affected by the Act of 1870. The Treaty with Franco was the same, for the purposes of this discussion, as the Treaty with the United States. It was couched, as far as this matter was concerned, in substantially the same language, and it wanted the provision, the absence of which gave rise to the present debate. The argument he adduced before the Court of Queen's Bench was that we were not only justified but bound to surrender to the French Government the person to be tried with- 1806 out any special arrangement in the particular case that he should not be tried for any offence except that for which he was extradited. The majority of the Judges of the Court of Queen's Bench assented to the correctness of that argument. The only dissentient—if indeed he could be called a dissentient—was Mr. Justice Blackburn, who, however, did not doubt the intention of the Legislature, although he thought it had not been expressed with sufficient precision in the Act of 1870. His contention was that the Court of Queen's Bench had distinctly expressed its opinion that the Act of 1870 could not have any retrospective effect on the Treaty of 1842. It was clear that if we attempted to enforce upon somebody else a provision not contained in the contract we should be endeavouring to enforce something that was inconsistent with it. The argument that we had always acted on the understanding that the person delivered up should be tried only for the offence for which he was extradited, and that this understanding had been imported as an arrangement into all the Treaties made prior to the Act of 1870, appeared to him to be equally without foundation. In the first place, he denied that we had in all cases maintained and acted upon such an understanding. The contention of the Government amounted to this—that a breach of the most technical rules in the construction of a Treaty which ought to have the largest and most free construction between two great nations might make extradition in any case utterly useless. Take, for example, the case of Lawrence, who was said to be guilty of a long course of wholesale fraud. How, he should like to know, could all those charges be dealt with in a foreign country? There was a case now pending in our Courts in which there were 145 different counts, each constituting a separate offence; and was it to be supposed that every one of those could be carefully gone into on the other side of the Channel with endless trouble and at enormous expense, or that a criminal should go scot free for the fear the sacred right of asylum should be violated? He would not, at that hour, enter into the distinction which had been taken by Mr. Fish and the answer of the noble Earl opposite as to the meaning of the section of the Act of 1870. He would content himself simply 1807 with observing that he thought the argument of Mr. Fish was entitled to a little more consideration than it had received at the hands of the noble Earl. In conclusion, he had only to say that while the right of asylum was a right of which this country was justly proud, and which no man worthy of the name of Englishman would suffer to be infringed, but that right ought not to extend to the protection of ordinary criminals—offenders against the criminal laws of another country. While we most gladly welcomed political refugees to our shores, there was no good reason why we should welcome criminals in the ordinary sense or look upon them as anything but most unwelcome refugees.
THE LORD CHANCELLOR
rose and addressed the House; but had not proceeded far when he was seized with a violent fit of coughing, which he was unable to repress, and hastily left the Woolsack and the House—having previously moved the adjournment of the debate.
§ Further Debate adjourned sine die.
§ House adjourned during pleasure; and resumed by the Lord Redesdale.
§ After going through the remaining Business on the Paper—
§ House adjourned at Nine o'clock, till To-morrow, Eleven o'clock.