Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876
No. 124.
Mr. Hoffman to Mr. Fish.
London, May 6, 1876. (Received May 17.)
Sir: Referring to previous correspondence upon the subject of Winslow, I have the honor to forward to you herewith a copy of a note I received last evening from Lord Derby.
I have, &c.,
[Note.—As instruction No. 864, of March 31, had been delivered to Lord Derby and a request made that it be substituted for a note addressed to him by Mr. Hoffman communicating it, this note is taken as a reply to 864.]
Lord Derby to Mr. Hoffman.
Sir: I had the honor of informing you in my note of the 29th ultimo that Her Majesty’s government having again considered the question of the extradition of Winslow, and of the other two persons in custody on the requisition of the United States Government, had come to the conclusion that it would not be in their power to surrender them unless an assurance were given by the United States Government that they would not be tried for any offense other than the extradition crimes on which the surrender would be granted, and that the prisoners could not be kept in confinement beyond the dates fixed by law for their detention.
I shall have the honor in the present note of informing you of the grounds on which this conclusion was based, and I will first consider the present position of the question as represented in the latter part of your note of the 20th ultimo, in which you state that “in 1842 a treaty for the surrender of fugitive criminals was made between the United States and Great Britain. Under it for nearly thirty years fugitives were delivered up on both sides, and tried for crimes not named in the warrant by either party, without remonstrance by the other.”
While assenting to the first part of this paragraph, Her Majesty’s government take exception to the second, and assert that there is no case within the knowledge of this government in which a prisoner was surrendered by England for one offense and tried by the United States for a different one.
The case of Heilbronn, where it is alleged that a prisoner was surrendered by the United States for one offense and tried for a different one here, was a private prosecution, and no evidence can be found of the attention of the government having been called to it.
As far, moreover, as the language of the statutes in both countries passed for the purpose of giving effect to the treaty of 1842 is concerned, it shows that though that treaty contained no express stipulations on the question of the trial of persons surrendered under it for crimes other than the extradition crimes of which they were accused before the surrendering authorities, the secretaries of state in either country were only empowered to deliver up extradition prisoners to be tried for the crime for which they had been accused in the country delivering. (See 6 and 7 Victoria, c. 76, 3, and act of Congress August, 1848, chap. 147, s. 3.)
Her Majesty’s government cannot assent to the proposition that the English extradition act of 1870 imposed a new condition upon the treaty of 1842. They maintain that if that act had never been passed, it would have been the duty of Her Majesty’s government, under the act of 6 and 7 Victoria, cap. 76, upon which the treaty then rested, and the general law of extradition, to have protested against any extradition prisoner being tried in the United States for crimes other than those of which he was accused in this country, and had that protest been disregarded by the Government of the United States, the British government would have been equally bound to require an assurance in any subsequent case that a prisoner would only be tried for the crime or crimes for which he was surrendered.
And while dealing with this part of the case, I would ask how the United States Government is prepared to reconcile the views expressed in your note in favor of the assertion of the right of asylum for political offenses with the principle yon have been instructed to advocate.
There is no principle of international law more clearly admitted than that advanced by you, that each state is judge of its own administration of justice; and, with regard to the right of asylum for political offenses, it is clear that the nation surrendering is to be the judge of what is or is not a political offense, the more so because opinions differ in different countries on this question.
But if the principle contended for in your note be correct, what is to prevent the United States Government from claiming a prisoner from this government for an extradition crime and trying him afterward for an offense which in this country would be deemed a political offense, but which in the United States might be viewed under a different aspect?
Her Majesty’s government believe that the only test and the only safeguard for the liberty of the individual and the maintenance of the right of asylum are to be found in the principle for which they contend, that the crime or crimes of which a man is accused in the country surrendering, which are proved against him there, and for which he is surrendered, are the only crimes for which he ought to be tried in the country claiming, and that without this safeguard the liberties of the subject and citizens of the two nations might be jeopardized and put into the power of political parties or of the vindictiveness of the receiving government, who, ex consessis, is not the proper judge of whether a particular offense is a political one or not. And here I must observe, with reference to your comment on the words “deliver up to justice,” that if those words can be construed as having the extended meaning for which you contend, namely, “deliver [Page 228] up to justice generally,” there would be no object in having a list of extradition crimes for which alone an accused person can be claimed, and the construction would be in direct opposition to the act of Congress of August, 1848, chap. 147, sec. 3, and 6 and 7 Vict., chap. 76, sec. 3, “to be tried for the crime for which he is so accused,” the word being identical in both acts.
I now proceed to consider the effect of the extradition act of 1870, and I will state at once that Her Majesty’s government do not contend that any of the provisions of that act have any force or effect in any foreign state.
They look upon that act only as declaratory of the law that is to govern the British government in the matters to which it refers, and they consider that none of its provisions are inconsistent with the treaty of 1842, section 27.
It is to be regarded as intended to prevent for the future the evils that were pointed out by Mr. Hammond and others as having occurred, and being liable to occur, in private prosecutions to which the attention of government had not been called.
Her Majesty’s government consider the provisions of the act as having been devised, not in the particular interests or for the particular ends of Great Britain, but as the embodiment of what was the general opinion of all countries on the subject of extradition, and as being beneficial to all and injurious to none.
That the general opinion of European nations has justified this view is proved by the acceptance, by most of the leading nations of Europe, of extradition treaties based upon its provisions.
The attention of the United States Government was drawn to the provisions of the act immediately after it became law, as is shown by Sir E. Thornton’s communication to Mr. Fish of the 22d of September, 1870; and it is evident that Mr. Fish’s notice was called to the effect of the restrictions of clause 3, subsection 2, from the question which he shortly afterward put to Sir E. Thornton, whether it would be possible that a stipulation could be inserted in any new convention, that if, during the trial of a person whose extradition had been asked for on a minor crime, such as larceny, evidence previously unknown should appear that a prisoner had been guilty of a higher crime, such as murder, it should be legal to try him for the latter crime. To this question Sir E. Thornton, by instruction from Her Majesty’s government, returned the following answer in writing:
“That any provision in the treaty, by which a fugitive surrendered for one offense mentioned in the schedule may be tried for any offense committed prior to his surrender, other than the extradition crime for which he was surrendered, would be inadmissible. Indeed the treaty, if it is to be carried out, must contain a provision exactly to the opposite effect.”
The draught of a new convention between the two countries was afterward prepared, and article VI of that draught, as it originally stood, was as follows:
“When any person shall have been surrendered by either of the high contracting parties to the other, such person shall not, until he has been restored or had an opportunity of returning to the country from whence he was surrendered, be triable or tried for any offense committed in the other country prior to the surrender other than the particular offense on account of which he was surrendered.”
Although much discussion took place on different provisions of this draught-convention, and considerable alterations and modifications of the original draught were proposed by the United States Government and adopted by the British government, not one word of objection was ever raised by the United States Government to article VI. The only proposal made by them with reference to the article was the addition, at the end of it, of the words “No person shall be deemed to have had an opportunity of returning to the country whence he was surrendered until two months at least shall have elapsed after he shall have been set at liberty and free to return;” which was assented to by the British Government. The terms of that convention were, in fact, with one exception, virtually agreed upon by both governments; that exception was a difference which arose upon article VII, relating to political offenses.
The original article was to the effect that “No accused or convicted person should be surrendered if the offense in respect of which his surrender is demanded shall be deemed by the party upon whom the demand is made to be of a political character, or if he prove to the satisfaction [of the police magistrate, or of the police judge, or commissioners named in article III of this treaty, or of the court before whom he is brought on habeas corpus, or] of the Secretary of State, that the requisition for his surrender has, in fact, been made with a view to try or to punish him for an offense of a political character.”
The United States government proposed to leave out the words between brackets, and thus restrict the power of deciding as to what was a political offense to the Secretary of State alone.
To this the British government could not agree, as the effect would have been to deprive an accused of his right to habeas corpus; to take away from him the power of proving at once his right to be set at liberty and of taking the objection in the first instance before the tribunal before whom he was brought immediately on his arrest.
This would be contrary to the spirit of English law, entirely apart from the extradition [Page 229] act of 1870; would have been a direct blow to the liberties of persons claiming asylum in this country; would put it in the power of a Secretary of State to keep an accused person in prison who ought to have been set at liberty at once, and who ought to have the opportunity given him of claiming his right to be set at liberty at the very first moment that he was charged before any tribunal.
It was for these reasons that the British government declined to accede to the proposal; and, if the rights of an accused, which were well known and established in this country long before the extradition act was passed, are secured to him, there is not, as far as Her Majesty’s government are aware, any other matter of difference between the two governments which would prevent that convention being signed at the present moment.
It does not, therefore, appear how, in any respect, the act of 1870, erected an insurmountable barrier in the way of a convention, as alleged in your note.
It appears, therefore, that the provisions of the extradition act of 1870 and the powers of the British government under it having thus been clearly brought to the notice of the United States Government, both countries continued, without any question, mutually to surrender persons accused of crimes within the treaty of 1842.
No case arose in either country, to the knowledge of the British government, in which any departure was made from the usual practice, and no prisoner was ever, to the knowledge of the British government, tried for any offense other than that of which he had been accused in the country surrendering.
Her Majesty’s government, therefore, contend that they and their predecessors were justified in considering that, by the tacit and implied consent of each country, this practice would be continued, and that it was not necessary to ask for any positive arrangement to secure that object.
So convinced was the secretary of state for the home department that this was the case, that, when in the first instance his attention was drawn to the intention to try Lawrence for smuggling by the solicitors who had acted for him in this country, the reply given to them was, that the Secretary of State could not assume that the Government of the United States, in the face of their general understanding and in view of their act of Congress of August 12, 1848, chapter 147, section 3, would ever think of acting in a manner so contrary to their own law and to the general law of extradition in all countries as to try an extradition prisoner for any other crimes than the extradition crime of which he had been accused in the country which delivered him up.
On the 9th of December, Sir E. Thornton informed Mr. Fish that, as the question had been raised in Lawrence’s case, it might be difficult for the British government to surrender criminals hereafter, unless Her Majesty’s government was assured by that of the United States that the surrendered criminal should be tried only for the crime on which his surrender was demanded, and it cannot, therefore, in fairness, be alleged that Her Majesty’s government deferred raising the question until there were three important cases of extradition pending. With reference to the allusions which you make to the case of Bouvier, it is to be observed that the point decided in that case was that under the provisions of the French treaty, (identical so far as the point is concerned with the United States treaty,) unless it had been proved to the court that the French law had provided that Bouvier could not be tried for any other offense than that for which he was surrendered, Bouvier could not have been delivered up under the extradition treaty with France, which contained no such stipulation.
The attention of Her Majesty’s government has been called to the letter addressed by the Attorney-General of the United States to the United States district attorney for the southern district of New York on the 22d December, 1875.
The letter is as follows:
“Sir: Application is again made to me in the Lawrence case, with a long record and an opinion of Judge Benedict.
“I now repeat what I have heretofore written with carefulness and urgency, and what I carefully tried to impress upon you when I saw you here, that, for grave political reasons, Lawrence must first be tried upon the charge upon which he was extradited, and upon no other, until that trial is ended, and whether subsequent proceedings for other crimes shall or shall not be taken, must await the order of the President.
“Now, upon an examination of the papers, it is perfectly easy for you and the court to determine upon what charge Lawrence was extradited, and to proceed to try upon that charge, and that only.
“This is a matter of great importance, and you must not blunder in it. There are consequences involved in it of a serious nature, as I have already told you, and we want to proceed in strict conformity with international law and international courtesy; therefore I merely add, try him first upon the charge for which he was extradited, and for that only.
“This instruction is so specific and so definite, that it does not seem possible that an honest mistake can be made in this case.
“EDWARDS PIERREPONT,
“Attorney-General.”
The question then arises whether the United States Government has, through the Attorney-General, power to stay proceedings in a prosecution which in his opinion is contrary to international law and international courtesy.
It appears from the last passage of the judgment of Judge Benedict, delivered on the 27th of March last, that the Government has such power by reason of its legal control over the prosecuting officer.
In the course of the same judgment the judge draws attention to the “political” aspect of the case, as distinguished from the judicial, and this distinction is material to be kept in view, when cases are cited to show that courts have taken a course in one or two cases, without showing that such a course was ever brought to the knowledge of the governments concerned.
This distinction was aptly illustrated in the late case of Blair, who was inveigled by a British subject, with the assistance of American officers, from the United States, and tried at Liverpool for fraudulent bankruptcy, and sentenced to eighteen months imprisonment.
Mr. Justice Miller, before whom this man was tried, took the same view as Judge Benedict, that it was not for the court before whom a prisoner was brought to inquire how he came before it. But, as soon as the facts were brought to the knowledge of the government, and an inquiry had been made, although it was not clear whether the trick by which J. H. Blair was removed from the jurisdiction of the United States was the act of the British subject or of the American officers, the British government at once released Blair and sent him back to America, paying his expenses to the place from which he had been brought.
In a letter from the United States Attorney-General, he states: “We want to proceed in strict conformity with international law and international courtesy.”
What, then, is the international law on the subject?
Her Majesty’s government maintain that there is no country in the world which claims the right now put forward by the United States Government.
It will be found that France, which has the largest experience in extradition law and practice, and the largest number of extradition Treaties with other countries, has never claimed such a right, whether there was any stipulation in the treaty to that effect or not; and that no country can be pointed out which puts forward such a claim.
Her Majesty’s government must, therefore, adhere to the decision which they have maintained from the very first moment that they were assured of the intention of the United States Government to try Lawrence for other than the extradition crime for which he was surrendered. They have always regarded the claim so to try him as a breach of the treaty of 1842, and they have nothing to add to the opinion expressed in my notes to General Schenck and yourself of the 29th of February and the 11th ultimo.
Her Majesty’s government deeply regret that there are two other cases which must follow their decision in regard to the case of Winslow; but they can only interpret Mr. Fish’s views as conveyed in your note of the 20th ultimo as a distinct assertion of, the right of the United States Government to try Lawrence for any offense whatever, and as a distinct refusal to come to any arrangement that Winslow and the other extradition prisoners now in custody here shall not be treated in a similar manner.
Her Majesty’s government must act as the law of England and the practice of all other countries require them to act, and can only express their deep regret that the operation of a treaty, which, limited as it was, has worked for the mutual benefit of both countries, should be in danger of being so unnecessarily terminated.
They will not abandon the hope that the United States Government may yet consent to give such assurances as will enable the two governments to maintain it unimpaired.
I have, &c.,