Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876

No. 130.
Mr. Fish to Mr. Hoffman.

Department of State,
Washington, May 22, 1876.

No. 887.]

Sir: Your No. 79, under date of May 6, inclosing a copy of a note addressed to you by Lord Derby, in relation to the extradition of Winslow, bearing date May 4, reached me late on the 17th instant.

This note of Lord Derby’s on its face is a reply to a note from you to him, wherein you communicated the general purport of an instruction addressed by me to you, under date of the 31st of March last; but on the 29th of April last you had given to Lord Derby a copy of the instruction of 31st of March. His lordship’s note of the 4th of May is therefore taken as a reply to that instruction, although it contains allusion to some expressions in your note which were not there in pursuance of your instruction.

If Her Majesty’s government had simply persisted in a refusal to de-deliver Winslow and the other criminals now in custody awaiting extradition, for the reasons heretofore given, it would have been unnecessary to prolong discussion, inasmuch as the distinct and definite refusal of this Government to give any assurance or stipulation not called for by the treaty, or to admit the right of Great Britain to exact from the United States stipulations foreign to the treaty, as a condition of the performance by Great Britain of her obligations, had already been communicated to Lord Derby.

But as the note in question assumes to give the grounds on which the refusal to surrender the criminals is based, and in large measure seems to change those previously assumed, and as the United States cannot assent to the accuracy of many of the statements made, or to the inferences drawn therefrom, it seems necessary that some reply should be made.

In my instruction of the 31st of March last, reference was made in detail to numerous cases decided in the courts, and to evidence from various sources, alike British and American, including the testimony of British officials best versed in extradition law, the opinions of British Crown lawyers, the published decisions of British courts and British writers upon extradition law, that where a criminal was in good faith demanded for one offense within the treaty, and surrendered therefor, there was no agreement, understanding, nor practice that he might not be placed on trial for another offense with which he was charged, in addition to the extradition crime.

Lord Derby does not explain, modify, or deny that this whole current of authority is to this effect, but meets the point with the assertion that “there is no case within the knowledge of this [the British] government in which a prisoner was surrendered by England for one offense, and tried by the United States for a different one,” and states that the case of Heilbronn was a “private prosecution,” and that no evidence can be found of the attention of the government having been called to it. In a subsequent passage he again speaks of “private prosecutions,” to which the attention of the government has not been called. I am at a loss to appreciate the application of the term “private” to the prosecution of a felony in the name and behalf of the state or sovereign. If, however, it means no more than what is claimed when it is said that the attention of the government had not been called to a particular case, the question arises as to that jealous protection of individual and personal rights which is the just pride of British as it is of United States laws, and which constitutes so large a part of Lord Derby’s note. The alleged criminal in whose behalf the state has exercised its sovereign power, whom it has seized and brought from a distant land under solemn treaty obligations, is especially entitled to be looked after by the state, and be protected in such rights as belong even to the criminal.

If Lord Derby’s theory that the prohibition of the trial of a surrendered fugitive, for other than the specific crime for which he had been delivered, be correct, either as a recognized principle of the general or international law of extradition, (if there be any such agreement between nations on the subject of extradition as to form what can be regarded as “international law,”) or as implied in the treaty of 1842, then a surrendered fugitive is, under such international law, (if such it be,) or under such treaty, placed in the hands of the receiving government with the highest obligations of honor, of justice, and of international faith to protect that fugitive from any other prosecution than such as that government claims that he is liable to.

The fugitive is surrendered to the government in its political capacity, and if he be subjected to any prosecution against which he has a right to immunity, the government, into whose especial charge and guardianship he has been surrendered for a specific purpose, violates its faith and neglects its duty, both to the individual surrendered and to the state which surrendered him. On the theory advanced by his lordship, the surrendered fugitive must look to the state in its political character—what Lord Derby calls “the government”—for his protection; and that power, call it state or government, cannot escape its responsibility by the plea of ignorance, and that its attention had not been called to the case.

Heilbronn was a fugitive criminal demanded by Great Britain under the treaty of 1842, on the charge of forgery, and was accordingly delivered up by the United States to British justice. He was tried for forgery before a British court and acquitted, and was thereupon indicted and tried for a public offense not named in the request or warrant of extradition, and one not included in the treaty, and he was thereof convicted.

If, under British jurisprudence, no public prosecutor is provided to enforce her law against criminals surrendered on a demand made upon a foreign state, and the duties of a prosecutor are discharged by an individual not technically a servant of the Crown, but permitted to assume that office, can the government of Great Britain claim or expect that the regular proceedings in her courts can be disavowed by the political branch of the government as not having been brought to its attention, or that such proceedings form no element in determining what has been the practice of the two governments under the treaty?

Heilbronn’s case was not referred to as an exceptional one, but as one of the numerous instances all tending to prove the unbroken practice and understanding of the two governments.

In addition to Heilbronn’s and the other cases heretofore referred to by me, there are other and recent decisions of distinguished British judges directly upon the point, and in full harmony with the views maintained by the United States.

Mr. Justice Ramsay, in the case of Israel Rosenbaum, in the supreme court of Canada, in 1874, when the discharge of the prisoner was claimed because there was no prohibition under the laws of the United States against the trial of criminals for offenses other than those for which they were extradited, as was required by the act of 1870, says:

“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,” (alluding to the provisions of the act of 1870,) and adds, “I am not, however, aware that it has been laid down in England, that a man once 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 crime;” and the same was substantially held in the case of Worms, extradited from Canada within the last few weeks.

It is not the province of any government to make inquiry into the extent of knowledge which the political department of another government may have as to the practice or the administration of justice in its courts in reference to extradition, but I have alluded in prior instructions to the uniform practice, without dissent or objection, in both countries under the treaty of 1842, and have shown that it was common in both countries, and that it was held by high judicial decisions in both, that a prisoner, extradited in good faith for an extradition crime, might also be tried for another crime.

Lord Derby, in his note, again refers to the provisions of the act of Congress of August 12, 1848, as showing that persons delivered up could not be tried for any offenses other than those for which they were surrendered; although in my former instructions I stated that the United States district court, and the Solicitor-General, acting in the place of the Attorney-General, had each separately decided precisely the opposite. The construction of the municipal laws of a state pertain to that state, and not to other governments.

In the United States, a treaty, duly ratified and exchanged, is the supreme law of the land, and its provisions are binding without legislation. It becomes convenient, however, from time to time to enact laws to regulate the general course of proceedings arising under one or a variety of treaties; but such legislation is purely internal and municipal.

The act of 1848 recognizes the fundamental doctrine that the surrender of a fugitive criminal is a political act of the Government, and the function of the court or magistrate is only to determine whether a case has been made out in accordance with the treaty or the statute enacted in aid of its enforcement. It neither adds to nor detracts from the obligations created by the treaty, and is not essential to the execution by the United States of its engagements under the various extradition treaties into which this Government has entered, but affords a convenient and satisfactory aid in the administration of those obligations.

When the United States, by the twenty-seventh section of the treaty of 1794, in much the same language as the present treaty, engaged to deliver up fugitives, no act whatever was passed, but fugitive criminals, nevertheless, were given up on the demand of Great Britain under that provision of the treaty.

In like manner when the tenth article of the treaty of 1842 went into effect, no statute was needed, but six years thereafter (in 1848) the act in question was passed as being thought advisable to provide machinery to carry out all treaties providing for extradition, not only with Great Britain but with all governments with which the United States had and might have treaties, no matter what may be their particular provisions.

Of these treaties, some, as I have said, contain restrictions as to the crimes for which a criminal may be tried by the state demanding him, and others are silent on the question; but the act applies to all.

Lord Derby, in his note to you, contends that the British extradition act of 1870 imposed no new condition upon the treaty of 1842, but in his note of April 13 he refers to the condition “which Her Majesty’s government are compelled to require under section 3, subsection 2, of the act of 1870.”

When it is proposed to engraft, whether by implication or by act of Parliament, upon an existing treaty, a provision not expressly contained therein, I may be permitted to look into the debates in the British Parliament in 1866, when it was proposed to amend a bill to carry into effect the treaty with France, by requiring a stipulation similar in its purport to that now asked of the United States, and there find that his lordship, at the time Lord Stanley, and then, as now, Her Majesty’s secretary of state for foreign affairs, opposed the amendment, saying that “in a case like this, international courtesy demanded that the treaty should not be materially altered without communication with the other party.”

In the same debate, Lord Cairns, then attorney-general and now lord chancellor, said that the bargain was made between the sovereigns, and the amendment “proposed to introduce a new ingredient into the bargain which did not exist at the time the bargain was made. It might have been unreasonable that this new ingredient had not been introduced at the beginning, but to introduce it now was simply to break the bargain which the sovereigns had made and Parliament had ratified; it was to infringe upon treaty engagements, and that without notice to the other side.” And further, and in particular reference to the latter part of the amendment, quite similar to the provisions of the act of 1870, now under discussion, he said, “to put such words into an act of Parliament, which did nob exist in the treaty, would only be offering a gratuitous insult to the foreign power to whom it applied, without securing any real advantage.” The amendment was withdrawn.

The treaty between Great Britain and France, which was the subject of that debate, was, like that between Great Britain and the United States of 1842, silent as to an inhibition of the prosecution of a surrendered fugitive for other than the specific offense for which he was given up. The proposition in Parliament thus sternly and honestly denounced and defeated as “discourteous,” as “breaking a bargain,” as “infringing upon treaty engagements,” as “a gratuitous insult to a foreign power,” and as “securing no real advantage,” is, nevertheless, what it is now claimed has been done by virtue of the act of 1870 with regard to the United States.

Her Majesty’s Court of Queen’s Bench in Bouvier’s case, and more recently the courts in Canada, have substantially held the same high doctrine which the eminent statesmen whom I have cited not long since announced in their places in Parliament. Neither international law nor international courtesy have changed the principles on which they were then recognized as resting.

The United States adheres to the position announced in my former instruction, that it will recognize no power to alter or attach conditions to the executory parts of an existing treaty, to which it is a party, without its previous assent.

Lord Derby seems to imagine some want of reconciliation between the views of the United States upon this extradition question and those asserted in its behalf on the rights of political asylum, and asks what is to prevent the United States from obtaining a prisoner on one charge and trying him for a political offense. The answer is ready:

The inherent, inborn love of freedom, both of thought and of action, engraved in the hearts of the people of this country so deeply that no law can reach and no administration would dare to violate.

A large proportion of those who sought refuge on our shores prior to the formation of this Government, sought this country for the enjoyment of freedom of opinion on political and religious subjects, and their descendants have not forgotten the value of an asylum nor the obligation of a state to shelter and protect political refugees. Neither the extradition clause in the treaty of 1794 nor in that of 1842 contains any reference to immunity for political offenses, or to the protection of asylum for political or religious refugees. The public sentiment of both countries made it unnecessary. Between the United States and Great Britain, it was not supposed, on either side, that guarantees were required of each other against a thing inherently impossible, any more than, by the laws of Solon, was a punishment deemed necessary against the crime of parricide, which was beyond the possibility of contemplation.

That a sentiment stronger than written law has been sufficient to prevent any attempt to infringe on this right, it is but necessary to recall the political events occurring in England, in Ireland, and in the United States since the treaty of 1842 has been in force, the attempted and actual rebellious which have been witnessed, and the consequent exodus of parties engaged, and yet not a demand by either government upon the other for the surrender of a fugitive for a political offense. In this respect, what has been must continue to be.

Careful as this Government has been and will be to maintain the right of asylum for political and religious refugees, it is mindful of the duty to its own citizens and to society at large devolving upon a state to visit punishment upon offenders against the laws—a duty in no way antagonistic to the preservation of the right of asylum.

The rights of society and the duties of the state in the punishment of criminals should not be narrowed and unduly restricted upon the vague suggestion or fear that at some time some political criminal may be placed in jeopardy.

The duty of Government to protect its own citizens and punish crime is equally a duty with that of affording hospitality and shelter to political offenders from abroad.

The Government of the United States sees no reason why either should be sacrificed to the other, any more than why all criminals should escape for fear some political offender may suffer.

His lordship believes that the only test and safeguard for the liberty of the individual and the maintenance of the right of asylum are to be found in the principle for which he contends, that the crime or crimes of which a man is accused in the country surrendering, and for which he is surrendered, are the only crimes for which he ought to be tried in the country claiming.

Differing with his lordship, I think that the liberty of the individual and the right of asylum would be equally guarded (independently of any reliance on common principles and on the good faith of both nations) by a treaty providing that a surrendered criminal shall be tried for none other than one of the several crimes enumerated in the treaty, and for which each government is willing to surrender. The fugitive would thus be effectually protected against trial for a political offense, justice would be more effectually administered, and crime be allowed less chance of escape.

The United States would not object to such limitation in any treaty which it may be called upon to negotiate with a foreign state. But, with the limitation proposed by Lord Derby, it is possible that if a criminal be surrendered on a charge of murder, and if the evidence developed on the trial establish only manslaughter, he might consequently escape; or if one be charged with assault with intent to kill, and after the issuing of the requisition or of the warrant the victim dies, it is doubted whether in this case, under the common law of England, which obtains also in most of the United States, the fugitive could be convicted of assault, &c., and not having been surrendered for murder, the doctrine contended for would protect him from trial on such charge.

I should not here again advert particularly to the British act of 1870 but that Lord Derby’s note seems to invite some examination of its provisions, and that he alludes to the abortive efforts made since its enactment to negotiate a new treaty of extradition between the United States and Great Britain, and (as he seems to claim) under its provisions.

In 1870, Great Britain had three treaties of extradition—with France, Denmark, and the United States.

Owing to difficulties presented by British law, the treaty with France had been, at least between 1843 and 1866, practically a dead letter; the treaty with Denmark has (as has been represented) rarely been resorted to, if at all.

The English practice as to extradition had been with the United States under the treaty of 1842. What that practice had been I have shown.

Great Britain at this time determined to establish a system of extradition, applicable to all governments, for her convenience, and in order to save the difficulty which had been experienced in obtaining the assent of Parliament, or in providing the means of carrying out a treaty, and in substance proposed to define under what limitations and conditions extradition ought to be and might be had.

It was her right to propose a system and to invite foreign states to accede to her views and make treaties thereunder. The general system, however, was anomalous. It applied the same restrictions to a Christian or a non Christian state, and left no opportunity to suit a particular treaty to the particular demands of two governments. Soon after the passage of the act of 1870, a proposition was made to the United States to make a treaty thereunder, and after some examination the proposition was declined.

In 1873, an amendatory act was passed, and further application being made, a negotiation was inaugurated.

Difficulties were experienced at the outset, and at every stage, growing out of the system which had been adopted and the inflexible character of the provisions of the act. Various drafts were from time to time prepared at the British foreign office, and discussed, with an effort to reach an agreement. In these drafts it was proposed that a criminal should not be tried for any offense committed prior to his surrender, other than the particular offense on account of which his surrender was made; and while an effort was made to extend the right to try a criminal to any of the extradition crimes named in the treaty, and to any higher crime than that for which he was surrendered, the effort was abandoned because the United States was informed that under the act a provision was inadmissible by which an offender surrendered for one offense named in the schedule could be tried for any other than the extradition crime. The negotiation was continued, however, until June, 1874, when the United States reached the conclusion that a treaty could not lie negotiated under the act.

That this Government ever reached or expressed the opinion that this act was the embodiment of what was the general opinion of all countries on the subject of extradition, is far from correct.

On the contrary, the United States was and is of the opinion that, as the provisions in a treaty placing limits on the right of a foreign state to try extradition criminals are chiefly inserted to protect political refugees, it amounts to a surrender of criminal justice to that principle to limit the right to a trial for the single particular crime named in the warrant of extradition, but that a proper limitation might be made by providing that the criminal shall be tried for no political offense, and for no crime not an extradition crime.

Such is understood to be the provision in almost all the French treaties negotiated with European powers; such was substantially the provision in the treaty negotiated between Great Britain and France in 1852, and such is the express provision inserted in the treaty negotiated between the British island of Malta and Italy in 1863, and approved in Great Britain.

From the earliest period this Government has had occasion to consider the questions arising under extradition law; the Articles of Confederation having extradition provisions, as has the Constitution of the United States, governing the question between the States of the Union; and while the United States do not profess to lay down rules of international law on this question, this Government does not consider it now for the first time, nor has its jurisprudence been silent in developing the system. In the negotiation referred to, the attention of the Government of the United States was directed to the proposed treaty more than to the act, looking to its provisions as binding on the government of Great Britain, entirely irrespective of the act in question.

But many of the provisions of the act did not, and do not, seem to be reciprocal, and appear to furnish excuses for a failure to perform an obligation imposed by a treaty made thereunder, or a shelter for a responsibility which naturally belonged to the government.

In view of the position assumed by Great Britain during this controversy, by which treaty provisions are practically made subservient to acts of Parliament, the difficulty and want of reciprocity in making any treaty thereunder become more apparent.

It is not my intention to attempt to critically examine this British, statute, but it will not be inappropriate to refer to some of these provisions.

Her Majesty’s government reserves to itself the right by section 2, after an arrangement has been made with a foreign state, by the order in council applying the act, or by any subsequent order to “limit the operation of the order,” to restrict the same, and to “render the operation thereof subject to such conditions, exceptions, and qualifications as may be deemed expedient.”

Again, section 2, subdivision one, provides that a fugitive criminal shall not be surrendered for a political offense, “or if he prove to the satisfaction of the police magistrate, or the court before whom he is brought on habeas corpus, or to the secretary of state, that the requisition for his surrender has in fact been made with a view to try or punish him for an offense of a political character.” In substance, therefore, the criminal may take two appeals from the decision of a police magistrate on this question, and, provided he succeeds on any application, he may be discharged; but no provision is made for an examination of the question in any quarter, should the police magistrate decide in favor of the criminal. In such event a question, which is purely one for the government to deal with, is remitted to a police magistrate, and should he improperly decide, the government is sheltered by a quasi judicial decision, and this of an officer not necessarily of a high grade.

Again, section 2, subsection three, provides that a fugitive criminal shall not be surrendered unless provision is made by law in the foreign state, or by arrangement, that he shall not, until he has had an opportunity of returning, &c., be tried “for any offense committed prior to his surrender, other than the extradition crime, proved by the facts on which the surrender is grounded.”

It will be seen the word “crime” is carefully used, in the singular, and, as Lord Derby states in his note, this Government was informed in 1870 that any provision would be inadmissible by which a prisoner surrendered for one offense could be tried for any “other than the extradition crime for which he was surrendered.”

But when the corresponding provision limiting Great Britain to trials is examined, (section 19,) it is provided that a criminal so surrendered “shall not be triable, or tried, for any offense committed prior to the surrender in any part of Her Majesty’s dominions, other than such of the said crimes as may be proved by the facts on which the surrender is grounded.”

The want of reciprocity of these provisions is quite clear, inviting frequent questions and difference.

To make one further remark as to this act, the latter part of section 7 provides that if the secretary of state is of opinion that an offense is one of a political character, he may refuse an order for a warrant of apprehension, and that he may “at any time order a fugitive criminal, accused or convicted of such offense, to be discharged from custody.”

In the drafts of treaties prepared and submitted to this Government under this act, no such corresponding authority to discharge criminals in custody was proposed to be given to the United States, nor does the act seem to contemplate a reciprocal right to other powers.

I repeat, that this act does not concern the United States, except in so far as it is put forward to limit our treaty rights, and I have been drawn into any consideration of its system, or particular provisions, only from the language of Lord Derby, that it was the embodiment of the general opinion of all countries on the subject of extradition.

Moreover, if the United States had been willing to negotiate a new treaty, which should contain certain restrictions as to trials not included in the existing treaty, and give certain advantages not known thereto, such readiness could” not justify Great Britain, after the negotiation had failed, in withholding all the advantages and in seeking to ingraft upon the old treaty such of the rejected provisions as she might select; particularly so when the act of Parliament of 1843 (6 and 7 Vict., ch. 57) was by its provisions to continue as long as the treaty; and the twenty-seventh section of the act of 1870 exempted the treaty with the United States from the clauses which were foreign to its terms; and when the United States, soon after the passage of the act of 1870, and on January 27, 1871, had informed Her Majesty’s government that this Government understood the twenty-seventh section of the act of 1870 as giving continued effect to the existing engagements for the surrender of criminals, to which no dissent was at any time or in any form or manner expressed. In fact, the understanding of the United States on this question was not only not dissented from, but has been sustained by the supreme court of Canada in Worms’s case in 1876, and in Rosenbaum’s case in 1874, where the court states: “I cannot see how a new provision of the act of 1870 could be consistent with the treaties with France, the United States, and Denmark;” and by the conclusion, so far as a conclusion was reached, by the Court of Queen’s Bench in the case of Bouvier, in 1872, to which I have heretofore referred, where the lord chief-justice says that, although he hesitates to express an opinion, he plainly sees that 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, and that, had it been necessary to decide that point, he would have been prepared to do so.

Having examined that case with care as to what was there decided, I read with surprise Lord Derby’s statement that the point decided was that, under the provisions of the French 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; and I am quite satisfied that a perusal of the case itself will tend to a very different conclusion.

Lord Derby makes reference to certain correspondence between an official of the home office and the solicitors of Lawrence soon after his surrender, and before any representation had been made to this Government. This correspondence assumed in a few words to prejudge and dispose of the whole question, and to state what was the law of this country, and the general law of extradition of all countries, in reference to the trial of surrendered fugitives. It was unknown to and unauthorized by this Government, and founded on the representation and the argument of the criminal. It appeared in the public prints, and was used by the counsel and friends of Lawrence in the United States to prejudge the question and create difficulty between the two governments; and I deeply regret the necessity which requires me to question the reference to ex parte representations made by the paid solicitors of a criminal to an official of a foreign power in the discussion of a grave question involving the rights and impugning the conduct of a friendly state, and jeoparding the maintenance of a treaty of long standing and of beneficial operation.

Lord Derby also quotes a letter of instruction addressed by the Attorney-General of the United States to the district attorney at New York in reference to the trial of Lawrence, whose case in the whole correspondence seems to have overshadowed that of Winslow, which alone is the subject of the present requisition made by the United States upon Her Majesty’s government, and his lordship inquires as to the power of the Attorney-General over prosecutions instituted against extradited criminals.

The letter in question was addressed by the head of the Department of Justice to one of his subordinate officers in reference to the conduct of a case under his charge. The Attorney-General directs that “Lawrence must first be tried upon the charge upon which he was extradited, and upon no other, until that trial is ended.” This letter of instruction, passing from a superior to a subordinate officer, was not, and was not intended to be, an exposition of the views of the Government upon any general proposition, but a specific instruction in a particular case; and whether or not he had ever examined the opinion of the late distinguished undersecretary of state for foreign affairs of Her Majesty’s government, he seems to have been guided by the same appreciation of treaty rights and of international law which led Lord Hammond, in his examination before the special committee of the House of Commons, to say: “We admit in this country that if a man is bona fide tried for an offense for which he was given up, there is nothing to prevent his being subsequently tried for another offense, either antecedently committed or not.”

In reply to the question of Lord Derby as to the power of the Attorney-General over prosecutions, it will be borne in mind that in the United States an offense may be against Federal laws, or against the laws of one of the States. The Attorney-General has power to control all criminal prosecution for offenses against the Government pending in the Federal courts, but no power whatever to interfere, directly or indirectly, in any State prosecution. The President has, in like manner, power to pardon criminals convicted, and to direct the suspension or dismissal of criminal prosecutions in the Federal courts, but none to pardon those tried and convicted in the State courts, or to control the proceedings of these courts.

Criminals of both classes come under the extradition treaty. It happens that Lawrence is charged with crimes against the Government, and Winslow and the other forgers with crimes against State laws.

Neither the President, nor any officer of the Federal Government, has power to control or to dismiss the prosecution in Winslow’s case, or in any case where the offense is against the laws of one of the States, and could not give any stipulation or make any arrangement whatever as to the offenses for which he should be tried when returned to the justice of the State against whose laws he may have offended.

But, as I have before stated, a treaty, duly ratified and proclaimed, is in the United States the supreme law of the land, and if the extradition treaty did, as it does not, provide that no criminal could be tried for any other than certain particular offenses, such a provision would be binding upon all courts, both State and Federal.

The absence of any such provision from the treaty between the United States and Great Britain leaves to the State courts the extent of jurisdiction over returned criminals, which has been so repeatedly referred to as recognized by the judicial decisions of the courts of both countries.

His lordship refers to the “late case of Blair, who was”(asordship mildly expresses it) “inveigled by a British subject, with ssistance of American officers from the United States, and trie Liverpool for fraudulent bankruptcy, and sentenced to imprisonment.” He was promptly released by the British government, which sent him back to the United States, paying his expenses back to the place whence he had been brought. This prompt and generously just conduct of Her Majesty’s government is duly recognized and appreciated by the United States.

The abduction was, however, regarded by this Government as a case of kidnapping; but the power so promptly and efficiently exercised by the British government is an evidence of the inherent power existing in the political department of that government, when it sees fit to exercise it, over the person of the individual, and in control even of the judgments of the courts. Could not the power thus summarily exercised in an act of comity, and in consideration of a wrong committed in a distant jurisdiction, be also exercised in the performance of a treaty obligation, and in aid of the administration of justice, without being hampered by the technicalities of a municipal act? Whether Blair personally desired to be returned to the United States is not known, nor is it supposed to be of any consequence. He was deported and sent out of Her Majesty’s jurisdiction by the political authorities of the government without process of law, but merely upon the representation of the United States of the circumstances attending his abduction or inveiglement.

His lordship speaks of having been “assured of the intention of the United States Government to try Lawrence for other than the extradition crime for which he was surrendered.” Her Majesty’s government has never been thus assured, and for the very good reason that the Government of the United States has never reached any such conclusion, and has neither expressed nor formed any such intention. It does, however, hold to the opinion that, if thus inclined, it has the power and the right, after having tried him on the charge on which he was surrendered, (although he may have been surrendered on only one of twelve or more charges of which the proofs were furnished,) with a bona-fide intent and effort to convict him on that one charge, to try him for others of the many offenses of which he has been guilty. It does not conceal, but avows, its belief in this right. And hereupon Lord Derby advances the startling declaration, which I repeat in his own words: “They” (Her Majesty’s government) “have always regarded the claim so to try him as a breach of the treaty of 1842.”

If Her Majesty’s government seriously advances this as indicating a mode whereby, in their judgment, a treaty may be broken, it is as novel as it may prove to be far-reaching. It is simply the proposition that the assertion by one party to a treaty of a claim, or of a construction of the instrument not admitted by the other, and without any act in derogation of the convention or of the rights of the other party, constitutes of itself a breach of the treaty.

I note this assertion, not with a view to discussion, but in the hope that so dangerous a doctrine may prove to have been unguardedly advanced, and may not be left unexplained or unavowed to justify future action (from whatever quarter) upon its broad statement, under which treaties and conventions become worthless.

While it may not be necessary to repeat the position of the United States, it is proper to say that the United States has simply demanded the performance by Great Britain of her treaty obligation to deliver fugitives under the treaty of 1842, as the same has been in operation for more than thirty years, and insists that no British statute can attach a condition to the treaty foreign to its terms.

If any proceedings in the United States, in the case of any criminal, have given rise to question or complaint, this Government is prepared to hear and properly dispose of any such complaint.

But while the treaty shall be in force, the Government of the United States would be strangely forgetful of the dignity and rights of the country if a foreign state were permitted to exact stipulations or engagements pursuant to her law, but foreign to the treaty, as a condition of obtaining the performance of treaty obligations.

It will be a cause of great regret that a treaty which has worked so long and so beneficially should be terminated on such a ground; but the decision of this question is for the authorities of Great Britain. The United States has in due form, and after complying with every requirement of the treaty, demanded the surrender of Winslow and the other criminals in London, and it is for Her Majesty’s government to decide whether Great Britain will or will not perform her treaty obligations.

You will read this instruction to Lord Derby, and in case he desires it, you will furnish him with a copy.

I am, &c.,

HAMILTON FISH.