No. 115.
Mr. Fish to Mr. Hoffman.
Department of State,
Washington, April 21,
1876.
No. 874.]
Sir: Referring to my instructions, No. 864, of
the 31st ultimo, as to the case of Winslow, whose extradition has been
demanded by the United States under the treaty of 1842, I have to state
that two cases, in which the Canadian authorities have been called upon
to pass upon the very point now under consideration, have come to the
notice of the Department, one of which has occurred since that
instruction was addressed to you. Of these it seems proper that you
should be informed in connection with the general question.
I inclose a memorandum in relation to the case of Rosenbaum, who was
extradited from Canada in 1874, and an extract from a dispatch received
to-day from Mr. Dart, the consul-general of the United States in Canada,
stating the conclusions to which the Canadian authorities have arrived
in the case of Charles Worms, who has been delivered up within a very
few days past upon a demand made on February 21, 1876.
The Department has not had an opportunity of examining the opinions in
these cases, but you will perceive that the conclusions reached appear
to fully agree with the position taken by this Government.
Should the question be still open, it would seem that the decisions in
these cases should be brought to the attention of the government of
Great Britain.
I am, &c.,
[Inclosure 1 in No.
874.]
Memorandum.
In the case of Rosenbaum, whose extradition was asked from Canada,
January 14, 1874, on a charge of arson, and the warrant for whom was
issued in January, 1874, the question that the British act of 1870
applied was raised and discussed, as well as the general question of
the right to try an offender for any offense other than the
extradition crime. The court examined this ground assumed by the
prisoner’s counsel, and reference was made to the arguments and
judgment in the previous case of Bouvier in the Queen’s Bench. The
prisoner was committed for extradition, and, in so doing, Ramsay,
J., said: “Notwithstanding the plausibility of this reasoning, it
fails to convince me. In the first place it goes too far, for if it
were recognized as a principle of international law that a prisoner
extradited could only be tried for the crime for which the
extradition took place, it would not have been necessary for the
Imperial Parliament to make these provisions, and it would not be
necessary to ask this question. I am not, however, aware that it has
ever been laid down in England that a man once
[Page 222]
within the jurisdiction of English
courts could set up the form of his arrest, or the mode by which he
came into custody, as a reason for his discharge when accused of a
crime. But even were this otherwise, it is not the international law
that it is sought to prove, but the special requirement of a new
statute. Now, I cannot conceive how a new provision of the act of
1870 could be consistent with the treaties with France, the United
States, and Denmark entered into years before.”
