Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Mr. Sanford to Mr. Seward.
Sir: I have the honor to enclose herewith, as worthy of attention, a bill offered on the part of the government in the House of Representatives on the [Page 618] 26th ultimo, touching extradition. By this bill, on condition of reciprocity, foreigners accused or condemned for crimes and offences detailed in the act may be delivered up by this government. The unusual extension given to the category of crimes and offences for which extradition may be granted will not pass unobserved by you.
I shall probably have occasion to refer to the subject again when it comes up for discussion in the chambers.
I have the honor to be, with great respect, your most obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Extraditions—Statement of Motive.
Gentlemen: The law of October 1, 1833, regulating extraditions, dates as far back as the first years of our national independence. Although at that time the principle of extradition itself was generally agreed upon, it was hardly possible to foresee the extent to which it might be carried in its application.
It may thence be understood how the legislator of 1833, in embodying this principle into a law, confined it within rather narrow limits. Experience acquired since has shown that his work is at the present moment in many respects insufficient. The most serious inconvenience presented by the law of October 1, 1833, was its comprising too limited a number of crimes and offences giving rise to extraditions.
Reproaches had already been expressed on this subject in the Senate, at the time of the discussion of the law. Your committee,” said M. de Haussy in the report presented to that assembly on the 27th of September, 1833, “has regretted that the enumeration of crimes and offences contained in article I was not more complete. It was of opinion that by means of the precautions which have been taken to forbid political extradition, the circle of private crimes and offences for which extradition should be authorized might have been enlarged. Why, for instance, did it not include the crime of the supposition of a child, happily rather rare in our manners, but which is not less serious ? Why not also have included the offence of grievous bodily injury, which may entail the penalty of reclusion ? Is it not an inconsistency to deliver up a foreigner accused of swindling or of a slight theft, and to grant impunity to one who, impelled by private revenge, may have grievously wounded and even lamed or mutilated his enemy ? On this point, relative to crimes and offences, the list of which might be increased, the minister observed to us that the present law was only an experiment; that although incomplete, it would not be the less productive of beneficial results for the country, since it will facilitate the repression of the most odious and frequent crimes; that this law, however, may be revised and improved hereafter, and as soon as the legislature has finished the important labors with which it is at present overloaded.”
The expediency of an increase in the number of crimes and offences entailing extradition was again pointed out in the chambers at the time of the discussion of the law of December 30, 1836, on the repression of crimes and offences committed by Belgians in foreign countries, and the necessity of a reform in that respect has revealed itself more and more every day.
On many occasions neighboring States have complained of the impossibility in which they found themselves of obtaining from Belgium the extradition of individuals accused of rape, subornation of witnesses, perjury, &c, and especially abuse of confidence, a very frequent offence, which from the material damage it may occasion, often presents a character of evident gravity. The government is, therefore, of opinion that it is incumbent to fill up to-day the divers deficiencies presented by the list of crimes and offences as provided for by the law of October 1, 1833, and to introduce at the same time into the enactments on that subject the other modifications and improvements recognized necessary.
This labor of revisal might have formed the object of a special and complimentary law, but it has appeared to the government that for the sake of clearness, and for facility of application, it was preferable to present a complete law on the subject, comprising the dispositions of the existing legislature, which have been maintained, and the new dispositions intended to complete them.
Such, gentlemen, are the object and aim of the bill which I have the honor of submitting, in the King’s name, to your deliberations.[Page 619]
Article one determines the crimes and offences to which the law is made applicable; to the acts provided for by the law of October 1, 1833, and which are reproduced under numbers one to seven, have been added a certain number of new acts provided for by the penal code, which, by the gravity they present, have appeared to require, for the same reason, a certain repression.
The mention of the acts indicated in numbers 27 and 28 is intended to insure the respect of rural property, especially on the frontiers, and thus to give satisfaction to claims which were already brought forward in the chambers at the time of the discussion of the aforesaid law of December 30, 1836.
The acts provided for by numbers 29 and 30 have been taken from the disciplinary and penal code for the merchant navy and maritime fishery.
It has been thought proper to mention them for the sake of navigation and maritime commerce Article two indicates the judicial documents, on the production of which extradition may be ordered, as also the form of proceeding.
In these respects, important modifications have been introduced into the existing legislation. According to the interpretation implied in the terms of article two of the law of October 1, 1833, extradition, in case of an offence, properly so called, can only take place in virtue of a judgment or sentence of condemnation. As the principle of extradition is now extended and rendered applicable by the new bill to a more considerable number of offences, it has appeared useful and natural to admit with respect to them, as a sufficient title to authorize extradition, the order of the chamber of council committing the prisoner for trial before the correctional tribunal. This change has already been taken into account in article one by the mention in the text of that disposition of foreigners, committed for trial.
Moreover, the law of 1833, by specially designating the decision of the chamber of committals among the number of judiciary documents which have to be produced, has given rise to serious difficulties of interpretation in connection to countries in which the organization of courts differs from ours.
Article two of the bill removes these difficulties, by permitting extradition on the production of the act of criminal procedure emanating from the competent judge, formally decreeing or legally committing the prisoner or the accused before the repressive jurisdiction.
The article maintains the intervention of the chambers of committals, called upon to give its opinion on the demand of extradition, but it establishes two new securities in favor of the foreigner, viz., a public trial and the right of being assisted by counsel before the court.
Article three of the bill establishes a new disposition, the want of which had been much felt in practice. This article foresees the hypothesis in which the extradition of a criminal, consented between two foreign states, could only be effected through the Belgian territory. In the absence of a formal disposition providing for this occurrence in the existing legislation, the government has often found itself in the alternative, in such a case, either of refusing the transit, or of granting it only on condition of the rigorous observation in Belgium of all the formalities prescribed by the extradition itself. This rigor of our legislation, the effect of which in all cases is to delay the sending of the foreigner before his judges, and thus to prolong his detention, has often given rise to complaints on the part of foreign governments. It exposes the government to reprisals and refusals which may render impossible, for its advantage, any extradition which may be granted to it by one of the numerous states with which treaties have been concluded in this matter.
Article three obviates these inconveniencies by authorizing extradition by means of transit, with the ordinary guarantees, but dispensing it, so far as to avoid all delay injurious to the foreigner, with the formality of the previous opinion of the chamber of committals.
Article four of the bill concerns provisional arreste. Under the present régime such arrest can only be effected on the exhibition of a warrant delivered by foreign authority and rendered susceptible of execution in Belgium.
The guarantee of provisional arrest on these conditions is often rendered delusive by the great facility which criminals now possess, owing to the considerable development of rail-ways, of proceeding, before the reception of the warrant issued against them, to one or the other point of the frontier. It has happened that for want of production of this document in proper time, individuals accused of robbing important sums or of fraudulent bankruptcy, and to whose charge a demand of extradition had been officially notified, have been able to embark at Ostend or Antwerp, before the very eyes of the powerless Belgian authorities, carrying their booty and the pledge of their creditors. To assure as far as possible the speedy arrest of accused parties, article four completes the dispositions of the correlative article three, of the law of October 1, 1833, by permitting in cases of urgency recourse to be had to a warrant issued by the Belgian authorities, and substantiated by the official notification received from the authorities of the territory on which the crime or offence has been committed.
The duration of the provisional arrest, under the empire of the law of 1833, is fixed at three months. The government is of opinion that this duration may be reduced without inconvenience to two months.
This alteration is established by article five of the bill, which, after the manner of article four of the law of 1833, mentions the judicial documents requisite for extradition, and in the absence of which the provisional arrest may not be prolonged beyond the determined period.[Page 620]
Article six of the bill is nearly the reproduction of article five of the law of October 1, 1833 put in connection with the new mode of publication prescribed by the law of February 28, 1845.
Article seven reproduces article six of the former law, completing it by the addition of the text of the law of March 22, 1856, which is connected therewith.
Article eight, concerning the case where the prescription of the action or of the penalty is acquired in a foreign country, is the exact reproduction of article seven of the existing law.
The law of December 30, 1836, on the repression of crimes and offences committed by Belgians abroad, referring in its second article to the list of crimes and offences provided for by the law of October 1, 1833, is, like the latter, of too limited an application, and has given rise to the same criticism. It was, therefore, necessary to give the same extension to. that law. Such is the motive for article nine of the bill.
Article ten, in rendering articles two and three of the aforesaid law of 1836 applicable to infractions in rural, forest, and fishery matters, is intended to fill up another important deficiency which had long been pointed out in the latter law. This disposition will chiefly have as a result to secure us in France a reciprocity of prosecution in the said matter, agreeably to article two of the recent French law of June 27, 1866.
It has happened that individuals whose extradition was demanded, and who were in such conditions as permitted them to acquire the quality of Belgians by the effect of a declaration of nationality, have had recourse to this means to escape the demand of extradition, and it-has been decided by law that under these circumstances they cannot be pursued in Belgium, agreeably to the law of December 30, 1836.
Article eleven of the bill, in order to prevent the impunity which would result from this jurisprudence, expressly declares that the latter law is applicable to this hypothesis.
Article twelve completes the bill by rendering the law of July 7, 1865, relative to foreigners, applicable to the foreigner residing in Belgium, who has been prosecuted or condemned abroad for any of the infractions provided for by article one of the present bill.
Finally, article thirteen is intended to abrogate the former laws of October 1, 1833, and March 22, 1856, of which the enactments that have been maintained are blended in the new law.
The bill contains no transitory disposition on the fate of extradition treaties concluded up to the present time. The abrogation of the law in virtue of which they were contracted is without influence with respect to them. They remain binding for the government in all their details, as long as they shall not have been revised in accordance with the rules introduced by the new law.
Leopold II, King of the Belgians, to all present and future, greeting: On the proposal of our minister of justice, we have decreed and decree. Our minister of justice is charged to present in our name to the Legislative Chambers the bill the tenor of which follows :
The government may deliver up to the governments of foreign countries, on condition of reciprocity, any foreigner committed or accused, or condemned by the courts of the said countries for any of the acts hereafter enumerated which may have been committed on their territory.
1. For murder, poisoning, parricide, infanticide, manslaughter, rape.
2. For arson.
3. For forgery, including counterfeiting bank notes and public securities.
4. For coining.
5. For false witness.
6. For theft, swindling, peculation, embezzlement by public functionaries.
7. For fraudulent bankruptcy.
8. For association of malefactors.
9. For threatening to murder, poison, or other attempt against the person.
10. For threats of burning.
11. For abortion.
12. For bigamy.
13. For arrest, detention, or sequestration of persons, without the order of the constituted authorities, and beyond the cases provided for by law.
14. For carrying off, concealment, suppression, substitution, or supposition, of a child.
15 For exposing or abandoning a child.
16. For abduction of minors.
17. For rape committed with violence.
18. For rape committed without violence, on the person, or with the help of the person of a child of either sex, below 14 years of age.[Page 621]
19. For attempt against morals, by exciting, facilitating, or favoring, to satisfy the passions of others, debauchery, or corruption of minors of either sex.
20. For blows and wounds given wilfully with premeditation or ambush, or having caused an apparently incurable disease or permanent inability of personal work, or if by the effect of such violence the person hurt has lost the total use of an organ, or has remained grievously mutilated.
21. For abuse of confidence.
22. For suborning witnesses.
23. For false witness.
24. For counterfeiting or falsifying seals, stamps, poincons, (dies.) or marks.
25. For corrupting public functionaries.
26. For destroying buildings, opposing commanded or authorized works, destruction of property, plundering or damaging goods or merchandise, movable property or effects.
27. For devastation of crops or plantations sprung up naturally or by the band of man, destruction or damaging of trees or grafts, cutting grain or forage.
28. For destruction of agricultural implements, destruction or poisoning of cattle or other animals.
29. For abandonment by the captain, except in cases foreseen by the law, of a trading or fishing vessel or boat.
30. For other maritime crimes, in the matter of merchant shipping or maritime fishery.
Extradition shall be granted only on the production either of the judgment or sentence of condemnation, or of the ordinance of the chamber of council, of the decree of the chamber of committals, or of the act of criminal prosecution, emanating from the competent judge, formerly decreeing or legally operating the committal of the prisoner or accused before the repressive jurisdiction, delivered in the original or in an authenticated copy, and after taking the opinion of the chamber of committals of the court of appeal, in the jurisdiction of which the foreigner shall have been arrested. The public accuser and the foreigner shall be heard in a public sitting.
The foreigner may be assisted by counsel. Within a fortnight, reckoning from the receipt of the documents, the latter shall be sent, with the substantiated opinion, to the minister of justice.
Extradition by means of transit on the Belgian territory may nevertheless be granted without taking the opinion of the chamber of committals, ‘or the mere production in the original or in an authenticated copy of one of the acts of procedure mentioned in the aforesaid article, when it shall have been requested by a foreign state in the interest of a foreign state, both bound to Belgium by a treaty comprising the infraction giving rise to the demand of extradition, and when such shall not be forbidden by articles seven and eight of the present law.
The foreigner may be provisionally arrested in Belgium, for any of the acts mentioned in article one, on the exhibition of a warrant delivered by the competent foreign authority, and rendered susceptible of execution by the council chamber of the tribunal of the first instance of his place of residence, or of the place where he may be found, and in case of urgency, on the exhibition of a warrant delivered by the judge of instruction of his place of residence, or of the place where he may be found, and substantiated by an official notification given to the Belgian authorities of the territory where the crime or offence shall have been committed.
After the order of arrest, the judge of instruction is authorized to proceed according to the rules prescribed by articles 87 to 90 of the code of criminal instruction. The foreigner may claim provisional liberty in cases where a Belgian enjoys that faculty, and under the same conditions. The claim shall be laid before the council chamber.
The council chamber shall also decide, after hearing the foreigner, whether there be reason or not to transmit wholly or in part the papers and other objects seized to the foreign government that demands the extradition. It shall order the restitution of the papers and other objects not directly connected with the act imputed to the accused.
The foreigner provisionally arrested shall be set at liberty if within two months he does not receive the notification, either of a judgment or sentence of condemnation, or of an order of the council chamber, of a decree of the chamber of committals, or of an act of criminal procedure emanating from the competent judge, formally decreeing or legally operating the commitment of the prisoner or accused before the repressive jurisdiction.
Treaties concluded in virtue of the present law shall be inserted in the Moniteur; they can only be enforced ten days after the date borne by that journal.[Page 622]
It shall be expressly stipulated in these treaties that the foreigner cannot be prosecuted or punished for any political offence prior to the extradition, or for any act connected with such offence, or for any crimes or offences not provided for by the present law; otherwise all extradition or provisional arrest is prohibited.
Shall not be considered a political offence or an act connected with such offence, the attempt against the person of the head of a foreign government, or against that of the members of his family, when the said attempt constitutes the fact of manslaughter, murder, or poisoning.
Extradition cannot take place if, since the act imputed, prosecution or condemnation, prescription of the action or penalty, is acquired according to the laws of Belgium.
Articles two and three of the law of December 30, 1836, on the repression of crimes and offences committed by Belgians abroad, are applicable to the infractions provided for by article one of the present law.
They are also applicable to infractions in forests, rural or fishery matters.
The foreigner who, after having committed beyond the territory of the kingdom any of the infractions provided for by article one of the law of December 30, 1836, and articles one and ten of the present law, shall acquire or recover the quality of a Belgian, may, if he is in Belgium, be prosecuted, tried, and punished there, according to the laws of the kingdom, within the limits determined by the said law of December 30, 1836.
The law of July 7, 1865, relative to foreigners, is moreover applicable to the foreigner residing in Belgium, who has been prosecuted or condemned in a foreign country for any of the infractions provided for by article one of the present law.
The laws of October 1, 1833, and March 22, 1856, are abrogated.
Given at Brussels, February 22, 1867.
By the King :