No. 135.
Memorandum of a conversation between
Sir Edward Thornton and Mr. Fish, at the Department of State,
Saturday, May 27, 1876.
Sir Edward Thornton read a telegram from Lord Derby, stating in substance that Mr. Hoffman, the United States chargé in London, had suggested to him that an additional article to the treaty of 1842 might be negotiated, and he (Lord Derby) thereupon proposed an article similar to the 3d article of the projet of a treaty which was under consideration between Sir Edward Thornton and Mr. Fish in June, 1873, which proposed to restrict the trial of a surrendered fugitive to that for the specific crime for which he may have been surrendered, and to which article he said Mr. Fish had proposed an amendment prescribing the time within which the fugitive might be at large after trial or discharge, before he could be arrested for trial on another offense, and during which he should be at liberty to return to the country by which he had been surrendered. That if this proposal be accepted by the United States, he (Lord Derby) would sign the new article in London with Mr. Hoffman, or Sir Edward Thornton would be authorized to sign it here with Mr. Fish.
Mr. Fish, in reply, expressed regret and surprise that Mr. Hoffman should have made any suggestion on the subject, and assured Sir Edward Thornton that Mr. Hoffman had no authority from his Government to make or to entertain any such proposition or suggestion, but that he was strictly limited to the conveyance of specific instructions from his Government so far as relates to any question affecting the construction [Page 247] of the extradition treaty between the two governments, and Mr. Fish requested Sir Edward Thornton to assure Lord Derby to this Iffect. Mr. Fish added that he endeavored to give Mr. Hoffman instructions on that particular question which should bte read to Lord Derby, and not to leave anything for oral representation or oral discussion, in order to avoid the possibility of any misapprehension from telegrams or other cause.
With regard to the proposition for negotiating an additional article to the treaty of 1842, he remarked that although he might have been filling in the negotiation of 1873 to have inserted the article now proposed, in a treaty which gave to the United States the improvements which it desired in the treaty of 1842, of a larger list of extradition crimes and other advantages, it could not be expected that the United States would now accept the limitations and restrictions upon what it holds to be its rights under the treaty without obtaining any of the advantages for which such limitations might have been accepted.
That the United States is extremely anxious to reach a satisfactory settlement of the difficulties which have been interposed in the execution of the treaty, but that the proposed article would impose upon the United States the limitation which it denies to exist under the treaty, and would secure no one advantage which it desired, and no improvement upon the treaty of 1842.
And, further, that in view of the argument which has been advanced by the British government, of the controlling force of the act of Parliament over all treaties or arrangements for extradition made by Her Majesty’s government subsequent to its enactment, it might be claimed, and possibly not without some force, that an article in amendment or additional to the treaty of 1842, would bring that treaty under the operation and control of the act, which this Government denies to be the case, and cannot consent to. It would be admitting away one of the grounds an which the United States stands.
He referred to what he considered defective features in the British act of 1870, which he thought made it unequal in its provisions as to the British and to the foreign governments, and as wanting in reciprocal powers and rights.
He further said that he thought it unwise to attempt to patch up the treaty of 1842; that the present would not be a propitious moment for such efforts; and that whenever anything is attempted in the way of altering that treaty, it would require a more general revision, and especially an enlargement of the list of extradition crimes.
Mr. Fish added that the United States would not object in any negotiation to be hereafter entered upon, that a treaty should provide to the effect that a surrendered criminal shall not be tried for any crime or crimes other than such as are of the class enumerated in the treaty as extradition crimes, nor be tried for any political offense.
In this connection he referred to the treaty negotiated in 1852 between Great Britain and France, (signed by Lord Malmesbury and Count Walewski,) which contained a provision to that general effect.
And upon Sir Edward Thornton observing that the act of 1870 would prevent the British government from agreeing to such astipulation, Mr. Fish asked whether Her Majesty’s government could not obtain from Parliament a special enabling or ratifying act for the particular treaty which might be negotiated between the two countries.
Mr. Fish further said that with such provision in a treaty, and with the similarity of feeling of the two governments and of their people on the question of political asylum, a full protection would be secured [Page 248] against the trial of a surrendered fugitive for any political offense; and that the violation of such provision by either of these two governments was not within the reach of contemplation, but, should it occur, it would lead to the denunciation of the treaty by the surrendering state, which would also be at liberty to hold the offending state to its responsibilities for violating a treaty engagement; the treaty would be broken by an act in violation of its terms; whereas if the state on which the demand for surrender is made decide that such demand, being made (as it must be) for one of the extradition offenses, is really designed to bring the fugitive to trial for a political offense, and refuses surrender on that ground, it would be an imputation upon the good faith of the request, and upon the integrity of the demanding state, which would justly give rise to resentful feelings, and would equally lead to a denunciation of the treaty by the state whose requisition has been refused, and whose honor and integrity has been questioned, and in this case the treaty would fail, not for an act done, but for the questioning of the good faith of one of the parties.
- HAMILTON FISH.
- EDWARD THORNTON.