No. 109.
Mr. Hoffman to Mr. Fish.
Legation of the United States,
London, March 10, 1876.
(Received March 24.)
No. 39.]Sir: Referring to your dispatch No. 849, in
relation to the extradition of Winslow, I have the honor to inclose to
you herewith a copy of a note which I received last evening from Lord
Derby, dated March 8, and also a copy of a note which I addressed to him
upon the same day. Having reason to believe that Her Majesty’s
government are determined to adhere to the position taken by them, and
refuse to give up Winslow, unless a law or arrangement is made that be
shall be tried only for the extradition crime, upon the ground that the
extradition act of 1870 leaves them no choice in the matter, I addressed
my argument, as you will observe, principally to show that the act does
not apply to the treaty, and I referred especially to the 27th section,
(ch. 52; 33, 34,) to which you called my attention.
I have, &c.,
[Page 209]
[Inclosure 1 in No. 39.]
Lord Derby to
Mr. Hoffman.
Foreign Office,
March 8, 1876. (Received March
9.)
Sir: I referred to Her Majesty’s secretary
of state for the home department General Schenck’s notes of the 1st
and 2d instant, applying for the surrender, to the United States
officer authorized to receive him, of Ezra D. Winslow, charged with
having committed certain crimes within the jurisdiction of the
United States of America; and I have the honor to inform you that,
the requisite proof having been laid before him, the chief
magistrate of the Bow street police court has formally committed
Winslow to prison, and Mr. Cross has forwarded to Sir Thomas Henry
his order, under section 8 of the extradition act, 1870, signifying
that a requisition has been made for the surrender of the
prisoner.
The chief magistrate will, upon the committal being completed,
forward to Mr. Cross a certificate of such committal, together with
his report upon the case, and nothing would, in the ordinary course
of things, remain but for Her Majesty’s secretary of state for the
home department, at the expiration of the fifteen days prescribed in
the eleventh section of the act of 1870, to issue his warrant for
Winslow to be surrendered to the person duly authorized to receive
him. But, in view of the difficulty created in consequence of what
has recently occurred in the case of Lawrence, as well as the
positive enactment of section 3, subsection 2, of the extradition
act of 1870, quoted in the second paragraph of my note to General
Schenck, of the 29th ultimo, Her Majesty’s government do not feel
themselves justified in authorizing the surrender of Winslow until
they shall have received the assurance of your Government that this
person shall not, until he has been restored or had an opportunity
of returning to Her Majesty’s dominions, be detained or tried in the
United States for any offense committed prior to his surrender other
than the extradition crimes proved by the facts on which the
surrender would be grounded; and I have the honor to request that
you will communicate this decision to your Government, in order that
some arrangement may be come to in the matter.
I have, &c.,
[Inclosure 2 in No. 39.]
Mr. Hoffman to
Lord Derby.
Legation of the United States,
London, March 8, 1876.
My Lord: Referring to your note to General
Schenck of February 29, upon the subject of the extradition of
Winslow, in which you state that the secretary of state for the home
department may come to the conclusion that he has no power to
surrender the fugitive, even though the usual committal by the
magistrate should take place, I have the honor to inform you that I
have received a communication from my Government upon this subject.
Mr. Fish states, not having then received a copy of your lordship’s
note, but only a telegram from General Schenck, that he is at a loss
to understand upon what ground the possible action of Her Majesty’s
government, as foreshadowed in that communication, is based.
If it is founded on a desire to make the extradition treaty of 1842
between the United States and Great Britain subject to the
extradition act of 1870, he is unable to find anything in that
treaty which admits the right of either party to exact conditions
beyond those expressed in the treaty. If, on the other hand, it is
based, as I infer from your lordship’s note, upon the reported
action of my Government in the Lawrence case, I am authorized by Mr.
Fish to say that at the date of his dispatch Lawrence had not been
arraigned for any other crime than the extradition crime, and that
no representation had been made to my Government upon this subject.
In your lordship’s note you refer to the clause of the act of 1870,
which forbids the surrender of a fugitive criminal, unless provision
is made by law, or by arrangement, that he shall be tried only for
the extradition crime proved by the facts upon which the surrender
is granted. But may I be permitted to call your lordship’s attention
to the 27th section of the same act, (ch. 52; 33 and 34 Vict.,)
repealing the former acts under which extradition had theretofore
been accorded.
This section, probably suggested by the foreign office, excepts
everything contained in the act inconsistent with the treaties
referred to in the repealed acts, among which treaties is that with
the United States. And I am enabled to call your lordship’s
attention to a case in the court of the Queen’s Bench, ex parte Bouvier, in which it was
[Page 210]
argued by the
attorney-general, in reference to this section, that the intention
of Parliament was to make a general act which should apply to all
cases, except where there was anything inconsistent with the
treaties referred to, and that the provision limiting the crime for
which the trial might be had, being inconsistent with the treaty,
the condition so imposed did not apply to the
treaty, and the lord chief-justice (Cockburn) further
observed, “I rather hesitate to express a decided opinion as to the
construction to be put upon the 27th section, although I see plainly
what was the intention of the legislature; that is to say, it was
intended, while getting rid of the statutes by which the treaties
were confirmed, to save the existing treaties in their full integrity and force.” The “full
integrity and force” of the treaty of extradition between the United
States and Great Britain has been clearly shown and settled by an
unbroken operation of nearly thirty years, during which time Great
Britain has, at least upon one occasion, tried
surrendered criminals for crimes other than those for which
they had been surrendered, and has thus afforded a practical
construction of the scope of the treaty, and of the powers and
rights of both governments. I sincerely hope that Her Majesty’s
government, upon a further consideration of this matter, will be
able to hold, with that eminent jurist, the lord chief-justice, that
the desire of the legislature to save the treaties in “their full
integrity and force” has been effected, and that they will decide,
as he states that he should have done, had it been necessary, “that
this object has been accomplished.” I know that Her Majesty’s
government is as anxious as we are that criminals should not escape
the just punishment of their crimes by taking refuge on a foreign
shore; and it would assuredly be a sad thing for the interest of
both countries, and for that of humanity, if a treaty which has
worked so well for nearly thirty-five years, to our mutual advantage
and to the furtherance of justice, should now be permitted to fall
to the ground, and great criminals, on both sides of the Atlantic,
be thus enabled to escape “unwhipt of justice.”
I have, &c.,
