No. 104.
Mr. Fish to General Schenck.
Washington, February 21, 1876.
Sir: A conversation occurred on the 17th instant, between Sir Edward Thornton and myself, in reference to the course which might be adopted by the British government on a demand being preferred for the extradition of Winslow on the charge of forgery.
Sir Edward suggested that if his surrender were requested it might be refused, unless a stipulation was entered into that the fugitive should not be tried upon any offense other than that for which he was extradited.
[Page 206]Whether this course, if adopted, grows out of the proceedings in the Lawrence case, or from a desire to make the extradition treaty between the United States and Great Britain subject to the provisions of the British extradition act of August 9, 1870, I cannot say.
You will remember that this act in section 3, under the head of “Restrictions on surrenders of criminals,” provides that no criminal shall be surrendered unless provision is made by the law of the foreign state, or by arrangement, that the fugitive shall not be tried for any offense “other than the extradition crime proved by the facts on which the surrender is grounded.”
If the course adverted to be caused by the Lawrence case, it may be well to say that it is believed that Lawrence has not, up to this time, been arraigned for any other than the extradition offense, and that no representation has been made to this Government on the question.
If such a course is taken for any other reason, it may be said that Great Britain has on more than one occasion tried surrendered criminals on offenses other than those for which they were extradited, and such trials afford a practical construction of the scope of the treaty and of the power and rights of either Government as understood and applied by Great Britain for a period of nearly thirty years after the ratification thereof; and I cannot imagine that it will be claimed by Great Britain that either party to a treaty may at will, and by its own municipal legislation, limit or change the rights which have been conceded to the other by treaty, and have been practically admitted for such length of time.
I would also call your attention to the twenty-seventh section of the act of 1870, (ch. 52, 33, 34, Vict.,) repealing former acts under which extradition had theretofore been made; this section expressly excepts everything contained in the act inconsistent with the treaties referred to in the repealed acts, among which is the treaty with the United States. It seems to have been clearly the intent of Parliament not to apply to that treaty any of the provisions of the act inconsistent with the treaty, as it had existed and been enforced for nearly thirty years.
While I hope that no such demand will be made as intimated, you will object to any such stipulation being asked, and, should it be insisted upon, you will decline to give it, and, if necessary, telegraph to the Department for further instructions.
I am, &c.,