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

No. 154.
Mr. Pierrepont to Mr. Fish.

Legation of the United States,
London, July 25, 1876. (Received August 7.)

No. 14.]

Sir:

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I attended the debate and send you a full report, and also the editorial in the Times.

I was surprised at the little interest it seemed to excite after the speeches of Lord Granville and Lord Derby. The statement of the lord chancellor about the small number who remained is sufficiently correct; but if he had said nine instead of twelve he would have been more accurate. There seems to be an increasing disposition on the part of the Times to sustain Lord Derby, as you will see by reading the editorial, and it is now understood that the lord chancellor is coming to his aid; but the argument is clearly with Lord Granville, and I am sure that the general sentiment is on our side, and is fairly reflected by the editorial of the Daily News, which is also inclosed.

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I have, &c.,

EDWARDS PIRREPONT.

[Inclosure 1 in No. 14.]

[The Times, Tuesday, July 25, 1876.]

Lord Granville did not interfere at all too soon in the extradition controversy, which has brought us so inopportunely into a sort of conflict with the Government of the United States. It would have been altogether unsatisfactory if the session had terminated without some expression of opinion on the part of English statesmen as to the subject of this dispute. As Lord Granville, at the opening of his speech last night, declared, extradition must be regarded as an act of comity in itself, and as an advantage both to the country demanding and the country granting it, while it must, at the same time, be acknowledged that no nation has a “right” to make the demand without a previous arrangement, and that political offenses are distinctly excepted from the category of extradition crimes. The last point was one which this country had guarded with special care, as was shown by the fact that in 1870, when the question became the subject of legislation in this country, England had only three treaties of extradition with foreign nations, while France and America had some thirty each. This difference is not at all a proof of greater carelessness as to the international pursuit of crime, but it is evidence of our more anxious solicitude to protect political criminals from the vengeance of hostile governments. Among the treaties, however, by which we had then bound ourselves was the Ashburton treaty of 1842, and the controversy which has arisen on this compact with the United States Government turns upon one simple conflict of construction. The Americans argue that when extradition has once been effected, and the accused person has been surrendered to the government demanding it, the surrendering government has no further concern with his fate. He may, they assert, be tried for the extradition crime, or for any other crime upon which the Government that has got the custody of him may choose to indict him. On the other hand, the British government, in the recent dispute, has contended that a person “who has taken refuge in England, and has been surrendered after certain legal proceedings for the purpose of being tried on a specific charge, is only lent, so to speak, to the government which claims him, for the purposes of that trial;” and if that indictment fails, he reverts to his former privileges of asylum. Such was the doctrine which Lord Derby last night laid down in the House of Lords; and we do not understand that Lord Granville upheld substantially a different doctrine. The difference arises when we apply these reasonings to the treaty of 1842, in which no special provisions were admitted with the object of securing the point on which so much stress is now laid. It may be that thirty-four years ago the experiences of contracting nations in matters of extradition were imperfect; or it may be that it was thought unnecessary to take any special securities of this sort in dealing with a country like the United States, which valued so highly personal liberties and the right of political eccentricity. At any rate, no stipulation was inserted in the treaty of 1842 limiting the right of the country demanding extradition to deal according to the forms of its law with criminals surrendered under the eleventh clause. But, according to Lord Derby, the right to try prisoners so surrendered for any or every crime is contrary to the spirit and intention of the treaty, contrary to its interpretation hitherto, and contrary to the principles laid down in repeated parliamentary discussions alike at Westminster and at Washington.

Upon this contention, and not upon the act of 1870, the refusal of our government to grant the extradition of Winslow and others in the same case has been founded. In answer to Lord Granville last night, Lord Derby laid stress not so much on any English statute as on an act of Congress, upon which, however, Mr. Fish puts a different interpretation. That act says that the person surrendered from the United States “shall be delivered up to be tried for the crime of which such person shall be so accused.” But does not this imply that until the present controversy arose the American Government took the same view as our own of the obligations of extradition? It was pointed out last night, however, by Lord Granville and other peers on the opposition benches that the law officers of the Crown in former years had taken a different view; and it appears, at any rate, that when questions arose upon the point which is now contested the legal advisers of the government were of opinion that the principle should not be immediately pressed. Whether, in giving this advice, they inclined to the view that the principle should be altogether abandoned is, at least, a doubtful point, and Lord Derby is justified in maintaining that it remains unimpaired. In any event, the political aspect of the case is not affected by the opinion of the law officers of a dozen or half a dozen years ago, and, upon the political question, the act of 1870 is really a conclusive piece of evidence. The doctrines laid down in that statute may be criticised in some particulars, but their main lines cannot be altered in the present temper of the English people. There is no need, as Lord Derby said, to talk claptrap; but the preservation of the right of political asylum is as dear to the citizens of this country as it was nearly twenty years ago, when they overthrew a strong government and a most popular minister on the mere suspicion of tampering with it. We do not suppose that the Government of the United States is likely to abuse the right of extradition in order to oppress its political enemies; but we do not know what the Government of the United States may be ten years hence, nor can we safely trust to a sentiment which may change with a breath of popular passion. What is more, we “cannot have one rule for the United States and another for the rest of the world;” and assuredly in revolutionary times we could not hope to secure the right of extradition from abuse as an engine of political oppression by the governments of Europe without some stringent safeguards of the kind now disparaged by the leaders of the opposition in the House of Lords.

Of course this question of policy is altogether distinct from the question of legal interpretation, on which, if the government were misled, it is to be censured in the usual way. Lord Granville and Lord Kimberley express a very strong opinion on this point. They allege that the government was not authorized to refuse the demands of America for the extradition of Winslow and others, and that, at any rate, it would have been proper to wait until the Americans had violated what we contend to be the law before upsetting a most important international compact. But Lord Derby, we think, is clearly in the right when he argues that, the difference of interpretation having once become apparent, the maintenance of the treaty in its present form became unsatisfactory, and, indeed, impossible. It was obviously better to raise a definite issue at once, and Winslow’s case gave the occasion. It is now as obviously necessary to prevent this legal dispute from being turned into a shield for crimnals, and to this end, we may hope, the Government of the United States will readily agree in what Lord Derby calls “a provisional arrangement which shall prevent rascals from benefiting by the falling out of honest men.” If that arrangement can be carried out, the two governments will be enabled to approach the grave political questions on which they differ so strongly in a spirit of sober compromise. Possibly we may see the State Department at Washington quickly returning to the mood in which the negotiations for a new draft treaty were conducted some time ago. Then, as Lord Derby reminded the House of Lords last night, an article was proposed by the British government embodying the principle now disputed, and the American Government not only accepted the article, but suggested that it should be strengthened by the insertion of words intended to make its meaning more distinct. This fact is a sufficient proof that the American Government cannot have any objection, on the ground of principle, to a definition of the right of extradition in the sense and with the object for which Lord Derby has been contending. If Mr. Fish is only dissatisfied with the manner in which the issue has been raised, he may be contented by Lord Granville’s protest and Lord Derby’s explanations. No offense, it is plain, was intended, and the Americans, of all people in the world, should be the least disposed to take umbrage at a sturdy difference of opinion, especially when the differing party is making a stand for personal and political liberties.

[The Daily News, Tuesday, July 25.]

The debate on the extradition question in the House of Lords was brought to a sudden close last night in a manner which every one must regret. The lord chancellor had only just begun the speech, to which the house naturally looked as the legal defense of the government’s policy, when he declared that his physical condition rendered it impossible for him to continue, and he had to resume his seat. The house indeed had already seen only too clearly that Lord Cairns was far too weak to go on with his speech. Every one was grieved rather than surprised, when, after a moment’s pause, he found himself obliged to withdraw from the house. Under these circumstances, and acting on a suggestion made by the lord chancellor himself in the last few hurried words he spoke before resuming his seat, the adjournment of the debate was moved and agreed to. We should of course regret in any case the breakdown of a debate caused by the illness of so distinguished and so valued a member of the government as Lord Cairns. But there is perhaps an especial reason why the government, and, we may add, the country, should feel sorry for last night’s collapse. It is desirable in every sense that the government should be able to make out a decent case for the course of policy they have adopted in regard to this extradition question. The government in its dealings with foreign states represents the English people. No partisan of the opposition, however eagerly he might wish to see the ministers embarrassed in our Parliament, could desire to see them placed at any disadvantage when carrying on a controversy or a negotiation with the government of a foreign country. Therefore, every one, we presume, would have been glad if our ministers could have shown that, whether right or wrong in the conclusions to which they had come in dealing with the question of extradition between England and the United States, they had at least some fair reasons for their view and could escape the charge of ignorance or inconsistency. The debate of last night did nothing to relieve them from this charge. It is perhaps somewhat of a compliment to call it a debate. The argument was all on one side; and, indeed, except for Lord Derby, even the speakers were all on one side. We cannot tell what ingenuity Lord Cairns might have displayed or what new light he might have thrown over the legal part of the controversy; but in the absence of this new light we can only say that the reasons for the course adopted by the government remain more obscure than ever. In truth, the public can only be courteously invited to suspend their judgment on the formal ground that the lord chancellor was not able to speak, and that had he spoken he might possibly have said something which certainly has not yet been said by any one on behalf of the government.

Lord Granville’s speech was clear, earnest, and able. He had to dispose of two points principally in dealing with what we may call the lately existing treaty. He had to show that the case set up by the government was wrong when it relied upon the act of 1870 to give a new interpretation to the treaty of 1842, and wrong when it insisted that the British government had always maintained the view of the treaty’s bearing lately upheld by Lord Derby. The foreign secretary himself became willing to give up his reliance on the act of 1870, although in his correspondence he at one time distinctly appealed to that act as the authority by which alone the American treaty was kept alive. Lord Granville had an easy task in showing, what indeed its mere statement ought to make obvious, that an act of Parliament passed in 1870 cannot affect a treaty made some twenty-eight years before, and that in any case an act of the English Parliament cannot bind the United States. The illustration which Lord Granville drew from the steps taken by Russia a few years ago with regard to that clause of the treaty of Paris which restricted her in the Black Sea was very appropriate and effective. Russia had at all events to obtain the assent of the other powers concerned in it before she could establish a modification of the clause; but the foreign secretary at one time maintained that we had a right to alter by an act of our own Parliament the effect of a treaty made long before with a foreign power. We need not, however, dwell on a contention which Lord Derby seems now to have completely abandoned. But the other point was made quite as clear. Lord Derby was mistaken, and very strangely mistaken, when he contended that the position he took up was that invariably maintained by the British government. Lord Derby, we need hardly remind our readers, contends or contended that when we surrender a criminal to the United States Government on one particular charge he cannot be tried in the States on any additional charge without a hew formality of extradition. In defense of that position he appealed first to the act of 1870, which undoubtedly would justify him if it could apply to all past time and to foreign countries. Falling back, however, from this line of defense, he contended that his view of the treaty was that which had always been maintained by Her Majesty’s government. Here was a question of fact; and on this, as we have more than once shown, and as Lord Granville showed last night, he was entirely wrong. We have already quoted the statement of Mr. (now Lord) Hammond before the select committee of 1868. We have already mentioned the instances in which the British government deliberately acted on an interpretation of the treaty directly opposed to that which Lord Derby maintained. Lord Granville put the matter beyond the possibility of doubt last night. He sometimes even apologized very naturally to the lords for a seeming waste of time in repeating the evidence of so obvious a fact.

Lord Derby, however, so far as we could follow his argument, did not seem to understand the bearing of this part of Lord Granville’s speech. He appeared to think it enough to contend that his interpretation was right, and that of his predecessors wrong, and to insist upon the obvious fact that the declarations of a ministry do not necessarily bind its successors. But it was not a question of the comparative virtue of different interpretations or of the power of one set of ministers to bind another set. Lord Derby had justified his view of the treaty by the allegation that it was the view always upheld by British governments. Lord Derby was utterly wrong in his facts, and of course his argument had to go with them. Were he entirely right in his view, and his predecessors perversely wrong, his argument would have gone all the same. Lord Granville, in the early part of his speech, objected strongly to the kind of argument that because a certain provision would be of great advantage, and ought to be in a treaty, therefore it must be in the treaty. But, although thus forewarned against such a line of argument, Lord Derby, as far as we understand him, placidly adopted that and some other fallacies throughout his speech. There was, we think, something in what Lord Kimberley said, that the government were, in any case, a little too quick in interpreting the claim of the American Government to construe a treaty in a particular way as a breach of the treaty. Perhaps, too, we may acknowledge that there is a good deal of sense in Lord Grey’s remark that we allowed ourselves to be carried away rather too far by our sensitive, and in itself very creditable, eagerness for the full preservation of our right of asylum. Guided by our dread of having to give up political prisoners, or of being deceived into giving them up, we seem to have acted as if our general duty was to protect all fugitives from foreign justice, and as if only in exceptional cases had we any right to surrender them. There can surely be no real difficulty in the way of our making satisfactory arrangements with the United States, and establishing a treaty better in all respects than the one which has failed. Out of this recent unlucky muddle may come some good. Perhaps last night’s debate, imperfect as it was, may help to bring about this end. But as a defense of the Government’s action it was a failure. We only hesitate to say that the failure is complete, because we must suppose that the lord chancellor has something to say, and he was not allowed to say it last night.

[Inclosure 2 in No. 14.]

Extradition.

[The Times, Tuesday, July 25, 1876.]

Earl Granville, in proceeding to call attention to the correspondence respecting extradition, said: The secretary of state for foreign affairs, while asking me last week to postpone my motion for a few days, seemed to agree that the subject of the papers to which I am about to call your attention is one worthy of the notice of Parliament. By the difference between the governments of this country and of the United States as to the construction of the treaty of 1842, a position of great inconvenience has been created for both countries. It is a position from which both countries must wish to extricate themselves, and I hope we shall learn this evening that by the delay asked for last week some progress has been made in that direction; but, in any case, I believe that parliamentary discussion, and possibly parliamentary action may be useful and requisite; and if it be carried on in the same moderation of tone, with some slight exceptions, as it appears to have been done by both parties in the diplomatic correspondence, no harm can be done. Though writers on international law have differed as to the obligation of surrendering the fugitive criminals of friendly foreign countries, I believe the result at which all civilized nations have arrived is this: 1, that it is an act of comity in itself; 2, that it is an advantage to both countries: 3, that no nation has a right to make this demand without a previous arrangement; and 4, that in no case ought persons to be so surrendered for political offenses. No country has been more strenuous in the assertion of the last important principle than Great’ Britain and the United States. Two questions are involved in the papers upon which I am about to comment. They are distinct questions, although they have been somewhat mixed up: 1. The execution by Her Majesty’s government of the existing treaty. 2. The negotiations for a new treaty. I will deal in the first instance with the second question, and with regard to it I am not aware that Her Majesty’s government are open to any criticism apart from the difficulties which have arisen out of the refusal to surrender Winslow, and the possibly unnecessary stereotyping of our position in the last dispatch. The facts regarding this negotiation for a new treaty are as follows: In 1870, while France and the United States had each more than fifty treaties of extradition with foreign countries, we had only three, viz, with the United States, with France, and with Denmark. This fact was due to a jealousy on our part, which I trust will never be abandoned or weakened, as to the maintenance of the rights of asylum for political offenders. A committee was appointed in 1868 to consider how best extradition could be combined with the maintenance of the right to which I have just alluded; and founded upon the recommendations of that committee, a bill was introduced, which passed in 1870. This act extended the number of offenses for which extradition might be made, facilitated the machinery for the purpose, and at the same time introduced new provisions for securing a person from the danger of being tried for any political offense. I succeeded to the foreign office after the passing of that act, and it was my duty to circulate to our representatives abroad a copy of the act, and soon afterward a model draft treaty. The result was that I was able to conclude treaties with Germany, Italy, Austria, Belgium, and Brazil, and other important countries—a list to which the noble earl has made useful additions. Negotiations on my part immediately began with the United States for a new treaty, and during the last month of my tenure of office information came from Sir E. Thornton that the only obstacle left was the objection of the United States to accept any authority but that of Her Majesty’s government to decide what constituted a political offense. This proposal appears to have been objected to by the present government, as it had previously been by the late government, but negotiations under the act of 1870 have been continued up to the present time. I am bound to say these negotiations have been conducted in a conciliatory spirit by our foreign office, and also more consistently than by Mr. Fish, who during the course of them has withdrawn concessions which he had previously made. I am sorry to say that as regards the execution of the treaty Her Majesty’s government do not appear to me to stand so well, either as regards their law or their policy. It may be presumptuous in an unlearned person to criticise the law of the government, with all the high professional assistance which they command; but I am encouraged, first, by the points raised not appearing to be very abstruse; second, by the knowledge that very high legal authorities take my view; and, third, by the fact that the government have in the correspondence constantly changed their own ground. The whole question arose out of the solicitors of a Mr. Lawrence having in July last year informed the home office that their client was about to be tried for a second offense, in addition to his trial for the offense for which he had been surrendered. At the instance of the home office the noble lord opposite protested, on the grounds that such a course would be contrary to the 3d section of the extradition act, by which act alone (section 27) the American treaty is kept alive; and contrary also to the law which governs the practice of the United States Government as laid down in the act of Congress, 1848, and contrary to the practice of all countries. I believe that not one of these grounds is tenable. [Hear.] What has the act of 1870 to do in an argument with a foreign country about a treaty concluded 28 years earlier than the passing of that act? It either agrees or disagrees with the treaty. If it agrees, there is no need to refer to it. If it disagrees, in what position are we placed? During the French and German war, the Russian Emperor declared that he would no longer consider himself bound by a particular provision of the treaty of 1856. But although France, Germany, Austria, and Italy had previously intimated that Russia ought no longer to have this particular provision imposed upon her, which was of a galling character, we indignantly and successfully resisted the assumption that the Emperor, by his own act, could free himself from this obligation. Supported by the unanimous voice of Europe, we obtained from His Imperial Majesty a distinct retractation, and a declaration that it was “an essential principle of the law of nations that no power could liberate itself from the engagements of a treaty, or modify the stipulations thereof; unless with the consent of the contracting powers by means of an amicable arrangement,” and in that declaration we ourselves unreservedly joined. After that solemn declaration how could we have pretended that the treaty of 1842 was affected by our municipal act of 1870? Fortunately, however, it is quite clear that it was the intention of the legislature in 1870 to maintain inviolate the treaty of 1842, and I could show that, in the opinion of the highest authorities, although the language of the 27th section might have been more precise, the legislature were successful in their intention. But the question of the act of 1870 as regards the United States is irrelevant, and has been admitted by the government to be so in later parts of the correspondence. As to the second point, I will refer later to the construction of the American act of Congress. With regard to the third point, as to the practice of all nations, these papers show that in America, in Canada, and in Great Britain the practice has been as the Americans state it to have been. As to European nations, I doubt whether any evidence which is exact is forthcoming; and it must be remembered that all our treaties with European powers excepting France date since 1870. It appears from the papers that it was in August the protest founded on the irrelevant grounds suggested by the home office was sent to the United States, and that in the following month, September, the law-officers were consulted. The substance of their opinion is not given in the portion of the foreign-office letter which is given t Parliament, and they are not again referred to, so I do not know what their advice may have been. In answer to our protest, the Government of the United States repudiated our claim, gave their view of our arguments, but took proceedings to prevent a second trial of Lawrence, and gave us some assurances to that effect. These assurances, however, are not quite consistent with subsequent declarations of non possumus made by them. The extradition of a certain Winslow was demanded by the United States Government, and refused by us, excepting on the condition that the United States Government would give an assurance that this person should not, until he had been restored or had an opportunity of returning to Her Majesty’s dominions, be detained or tried for any offense committed prior to his surrender other than the extradition crimes proved by the facts on which the surrender would be grounded. The demand for this assurance was placed solely on what had passed in the case of Lawrence and the act of 1870—that act which I have already shown was irrelevant, and which Her Majesty’s government subsequently abandoned. The United States Government again reply on the 31st of March at great length, and with arguments which are not easy to meet. A rejoinder, dated the 4th of May, is sent by the noble earl (Lord Derby) to Colonel Hoffman, and in this dispatch a new line of argument is adopted—whether upon the reconsidered opinion of the law-officers or based upon the opinion of a still higher authority I cannot say; but I incline to the latter opinion, and, if I am right, I cannot help thinking that that high authority has in this and in some previous cases found himself in the same position as great consulting physicians are not unfrequently placed. The physician finds the patient ill; he is determined to save him. He thinks the treatment must be changed, but he also wishes to do nothing which may endanger the reputation of the family doctors. [“Hear, hear,” and a laugh.] In this dispatch of May 4 it is explained that the act of 1870 imposed no new condition on the treaty of 1842, and it is argued that the treaty contains within itself provisions for which Her Majesty’s government contend, and it is for the first time distinctly stated that the provisions of the act of 1870 have no force or effect in any foreign state. And, again, on the 7th of May the noble earl (Lord Derby) tells Sir E. Thornton that Her Majesty’s government do not rest their case on the act of 1870, but, on the general principles of extradition, the language of the statutes of both countries putting the treaty of 1842 in force, and the care taken to specify in the treaty the particular crimes for which extradition can be granted. The additional papers which have been presented contain two more important documents on the execution of the treaty of 1842—a very long dispatch of Mr. Fish, giving the whole views of his Government, and a very able, but not, to my mind, convincing rejoinder from the noble earl (Lord Derby.) In this rejoinder the argument founded on the practice of all nations is omitted, and the act of 1870 is only mentioned to be dropped. But the foreign office is again good enough to explain to the Government of the United States the construction of their own municipal law—the act of Congress of 1848. Though a little rash, it may have been a natural thing to do at the outset of the controversy; but, after an answer had been received from the Government of the United States to the effect that not only the Government and their law officers but also their judges in court take an exactly opposite view of the right construction of that act, it does appear to be a strong and (I will not say ridiculous, but) an anomalous thing for us to continue to explain to them the meaning of their own laws. [Hear.] Then the cardinal question of the case is stated, viz, that it is an essential principle of extradition, as permitted or practiced by this country, that a person surrendered on an extradition treaty can be tried for the offense for which he is surrendered, and for no other offense previously committed; that this is the proper construction of the treaty of 1842; that it is the meaning which was attached at the time, and which has since been continued to be attached by this country to that treaty, and that it is the meaning which they had understood was attached to that treaty by the Government of the United States. [Hear, hear.] It is possibly from the want of legal acumen on my part, but I cannot find a trace of this condition in the treaty of 1842. It is certainly not there in words; and if it was understood to be there, why was it not expressed in words? The act of 1843, confirming that treaty, was warmly debated in this house and in the House of Commons. Mr. Macaulay and others expressed great alarm lest false charges should be made and false cases got up merely to get possession of a slave. Lord Aberdeen, the late Lord Derby, Sir R. Peel, and the attorney-general, repudiated the insinuation against the Government of the United States that they would lend themselves to getting up such a false case; but how comes it, if there was an understanding that a surrendered criminal was only to be tried for one offense, and could not be tried for any other, that none of them explained that this safeguard was in the treaty, although it was not expressly stated? [Hear, hear.] If the condition was in the treaty, why did Sir Thomas Henry, in his evidence before the committee of 1868, say that it was a provision in some treaties and not in others? and why, I should like to know, if the provision was in the treaty with the United States—in which treaty it was not—should he recommend it to be expressly inserted in all future treaties? And why was it necessary so to insert it in the act of 1870? [Hear, hear.] An ingenious argument is urged to show that the provision was so necessary to the treaty that it must be in it. I do not see any great force in the point as to the surrender of criminals being limited to a specified number of offenses. The chief object of that specification is to prevent a friendly government having to put all its administrative and judicial machinery into motion for any petty and trifling misdemeanor; but when that specification is accompanied by a provision that the crime for which extradition is demanded must not only bear the same name in both countries, but must constitute the offense called by that name in the country called upon to surrender, it may in some cases be a useful safeguard against proceedings for a political offense. But when you proceed to argue that the safeguard is incomplete without a provision that no fugitive criminal can be tried for a second offense, it may be a very fair and good argument in itself, as the committee of 1868 and the Parliament of 1870 evidently thought. It may or may not be a conclusive argument for the future, but no one can pretend that it is such an axiom as could not have been disputed by the negotiators of 1842, who might have thought it a very great impediment to the administration of justice if the condition had been proposed to them; still less that, from the mere fitness of things, it must have necessarily been in the essence of a treaty in which nothing is said about it. I see nothing to make me believe that this condition is in the treaty of 1842. Her Majesty’s government states what has been their understanding, and what they believe to have been the understanding of the treaty of 1842, and what they believe to have been the understanding of the United States.

The United States Government declare exactly the reverse as being their understanding, and what they believe to have been our understanding. Here we have assertion against assertion. What proofs does either side bring forth? Sir Thomas Henry is the first in these papers to make the assertion that has been adopted by Her Majesty’s Government. It is hardly consistent with what he stated to the committee in 1848, and he brought forward no proof whatever in support of his belief. It remains, therefore, simply an expression of his belief—a statement which no one who knew Sir Thomas Henry could for a moment doubt; but yet only a statement of his own belief. What other evidence does the noble earl (Lord Derby) adduce? A statement made ten years ago by himself as secretary of state for foreign affairs, and one made on the same occasion by the noble lord on the woolsack as attorney-general. These statements were obiter dicta during a debate when the two noble lords were arguing against a provision being introduced which the noble and learned lord said added a new term to the treaty of 1842. The statement of the noble earl, (then Lord Stanley,) though not quite so clear as he usually makes them, is perfectly consistent with the theory he now holds. The attorney-general’s statement is not inconsistent with that theory, but at the same time it is also not inconsistent with the opposite theory to which I will presently allude. The words are, “We should have a well-founded complaint against any country that demanded a man to be given up for one offense and then proceeded to try and punish him for another.” I also hold that we should have reason to complain of a country demanding the surrender of a man for one offense and then trying him for another; but I contend that under the treaty of 1842, after the man has been tried for the offense for which he has been given up, there is nothing to prevent his being tried for another; and the words of the attorney-general do not necessarily go further than this. But be that as it may, there remains no proof on the side of the Government excepting these two sentences uttered in the heat of a debate. What proofs are alleged on the other side? First, the dicta of text-writers. Such dicta are always quoted on international controversies, and I should therefore have thought had some weight. But as they are summarily disposed of in the dispatch of Lord Derby as of trifling importance, I will not trouble your lordships with the quotations, which you can find in Mr. Fish’s argument. But there is another witness entirely in their favor whom the United States quote, who is treated with as little reverence as the text writers. It is the noble lord behind me, who, as Mr. Hammond, was fifty years in the foreign office, and who during half the time the treaty lasted was the head of the permanent staff of the foreign office. He is one who knows all the traditions of the foreign office, good, bad, and indifferent, absolutely by heart, and who was lately so gracefully alluded to by Lord Derby as his teacher in foreign affairs. If Mr. Hammond had merely stated his own opinion on the construction which had been accepted by the foreign office as to a particular treaty, I can imagine no stronger witness in Great Britain; but Mr. Hammond expressly stated in his evidence that his opinion was in accordance with that of the law officers. There is another witness, Mr. Mullens, an eminent solicitor, who has been more engaged in extradition cases than any one. He not only gave his opinion as to the understanding of the treaty by this country in the opposite sense to the present contention of the government, but he mentioned a case— that of the Heilbron, who was tried for a second offense after having been tried for the offense for which he was surrendered—a case concerning which the government can only answer that they were ignorant of it, and were not concerned in the case. To sum up the evidence given before the committee of 1868: There were six witnesses. Of these, Sir Thomas Henry, Mr. Hammond, and Mr. Mullens gave the opinions that I have quoted, and not one of the other three witnesses gave an opposite opinion. What other evidence is there in favor of the United States Government? As to the understanding which existed in both countries, they have the decisions of courts in the States, and the cases of persons actually tried for a second offense. There are also the decisions of the courts of the Dominion of Canada in the same sense, and from what I hear the government of the Dominion are much concerned, and entirely repudiate the position which Her Majesty’s government have taken. But what appears in the last batch of papers which have just been presented? Those papers show three things. In the first place, they show that 11 years ago Mr. Seward informed our government of the construction which the United States then put on the treaty, which is diametrically opposite to that now held here, and which disposes of the assertion of the contrary understanding on the part of the Government of the United States. Secondly, they point to the case of Burley, before the act of 1870, on which the foreign secretary, Lord Russell, gave his opinion in communication with the colonial secretary, Lord Cardwell, and upon advice of the law officers, who I believe were the late lord chancellor, who is sitting behind me, and the present master of the rolls, that it would be a breach of faith to substitute another offense for that for which Burley was surrendered, but that, if Burley were bona fide tried for the first offense, it would be difficult under the treaty to question the right of the government to try him for any other offense, whether such offense was or was not a ground or extradition, or even without the treaty. Does the Burley case prove that the present contention has always been maintained by the Government of the United States and by Her Majesty’s government? In my opinion it proves diametrically the reverse. Well, what does the Caldwell case prove? The Caldwell case is summed up in the following letter:

“Downing Street, May 16, 1871.

“My Lord: I have the honor to acknowledge the receipt of your lordship’s dispatch of the 20th of February relating to the case of Richard Cald well, who was surrendered to the United States Government under the extradition treaty on the charges of forgery and uttering forged paper, and who is alleged to have been subjected to legal proceedings in the United States for an offense against the laws of that country for which he was not surrendered, and for which he was not liable to surrender under that treaty. I have been in communication with the secretary of state for foreign affairs as to this case, and the opinion of the law officers of the Crown has been taken upon it. Her Majesty’s government are advised that this is not a case in which they would be justified in claiming the surrender of the petitioner from the United States Government. The obligation of Great Britain under the convention of 1842 is qualified by no other condition than that evidence of a definite kind shall be forthcoming of the fugitive having committed one of the crimes enumerated in the convention. It appears that such evidence was produced to the satisfaction of the Canadian authorities, and the petitioner was therefore surrendered to the United States Government. It further appears, from the decision of the judge of the circuit court of the southern district of New York, upon the demurrer of the petitioner, that he has been duly indicted for the offense by reason of which he was surrendered, and it seems that he is to be tried for it. Her Majesty’s government are further advised that there is nothing in the convention which would preclude the indictment of the petitioner in the United States for an additional offense which is not enumerated in the convention, so long as such proceedings are not substituted for proceedings against him on the charge by reason of which he was surrendered. The original inclosures which accompanied your dispatch are herewith returned, in compliance with your request.

“I have, &c.,

“KIMBERLEY.”

Unless I have committed some great blunder, it appears to me that I have shown that the different legal positions which have been taken by Her Majesty’s government in this matter are not unassailable. It appears to me that the papers themselves demonstrate that it is absolutely the reverse of the fact that Her Majesty’s Government have always maintained the doctrine which it has been attempted to hold by Her Majesty’s present government. I presume that my noble friend will hasten to assure the house, if he has not already given that assurance to the United States, that this last declaration was made per curiam, and I believe that any such declarations would pave the way to more easy negotiations for a future treaty. I do not know whether he will attempt to defend the conflicting assertions as to law which he has been advised to make. But he has one complete answer as regards the foreign office. It is in no sense a legal office. Until this month there has never been a professional lawyer in the office, and I am not quite sure that the introduction of the legal element into the office may not be productive of more embarrassment than advantage. Whenever a legal question has arisen, the foreign office has been advised by the highest authorities on it. In the case of extraditions, the foreign office have always acted ministerially for the home office, and therefore, if the noble earl defends the foreign office on the grounds that the legal opinions have been taken from others, although it does not clear the government at large, the answer is complete as respects the foreign office But how about the policy, for which the foreign office is clearly responsible? Would it not have been better to delay protesting till the occasion arose, and thus postpone till it was necessary that which committed us, and obliged the United States to commit themselves, and this more especially as there was not the slightest chance as regards this particular treaty of danger to the principle of affording an asylum to political offenders? This was the course Mr. Seward took eleven years ago, when, assenting up to a certain point to Lord Russell’s doctrine but going beyond it, he said with good sense, “But this is an abstraction, and I will not deal with what does not arise.” But what was the view of Lord Derby? The following letter in reference to the case of Charles L. Lawrence was written in November last by his instructions:

“I am directed by the Earl of Derby to transmit to you, for the information of Mr. Cross, a further dispatch, which was received on the 16th instant from Her Majesty’s minister at Washington, from which it appears that the United States Attorney-General has instructed the United States district attorney at New York to the effect that the trial of Lawrence is to be proceeded with on the charge of forgery, for which his extradition was granted, and that if he should be acquitted of that charge the district attorney is to await further instructions. Under these circumstances Lord Derby would suggest, for Mr. Cross’s consideration, whether it would not be advisable that any representation to the United States Government on this subject should be, in any case, postponed until after the trial of Lawrence for the extradition crime for which he was surrendered, and that any instructions to Sir E. Thornton should be framed accordingly. His lordship’s reasons for this suggestion are that in the event of Lawrence being convicted of this crime and not being indicted for any other offense, no representation to the United States Government would be necessary, and that in the event of his being acquitted of the extradition crime, and then indicted for other offenses, the opportunity for making a representation to the United States Government would be a more fitting one than at present. In the latter case, also, Her Majesty’s government would be acting with a full knowledge of the course which the United States Government intends to pursue, and would therefore be in a better position to protest, if necessary, than they are at present, as it still appears doubtful whether Lawrence is to be tried for offenses other than the extradition crime for which he was surrendered.”

No opinion could be more judicious, and I am perfectly convinced that if this judicious advice had been adopted we should have heard no more of the question, and we should have avoided all the irritating circumstances which now make the negotiation for a new treaty so difficult. [Hear, hear.] On the other hand, it must be admitted that if this opinion had prevailed we should now be deprived of the society of three American citizens whose surrender has been demanded but not granted, and who will remain with us for life, or until the moment they are detected in murdering, robbing, or cheating in this country. [“Hear, hear,” and a laugh.] But the home office would not hear of this; they were in such a hurry that their only rejoinder was a direction not only to send off a protest, but to send that protest by telegraph, and they only forwarded their reasons at a subsequent period. [Hear, hear.] Mr. Disraeli announced to the Commons the other day that the home secretary is the chief secretary. He is no such thing. The secretaries of state are of equal rank, taking formal precedence according to the date of the creation of their respective offices. [Hear, hear.] But in this case the home office appears to have assumed some such authority, for not only does it overrule the foreign office in a matter which belonged to the latter, but a little later we find the home office scolding the foreign office for not having made its points with sufficient clearness. The one fault for which I think the foreign office was responsible was yielding to the home office on a matter on which the latter, perhaps naturally enough, only took the one-sided view. But, whoever is to blame, this question of extradition has come to a dead-lock. I believe the treaty has not been put an end to, but it remains a dead-letter. It is clear that neither government will ask for or grant the surrender of any criminal under it. I hear already of cases where criminals have openly boasted of their safety. We have already this year secured for ourselves the society of three persons against whom very grave charges have been made. The late Lord Derby told the House of Commons that an extradition treaty was of much greater importance to us than the United States, especially with regard to Canada. I do not care to enter into the proportionate share of inconvenience which each country—the commercial communities above all—will have to bear, but we must not conceal from ourselves that the evil is not to be measured by the number of extradition cases which have occurred. It is rather to be gauged by the amount of crime which will be augmented by the increased chances of impunity to the criminal. [Hear, hear.] In these circumstances I trust that the government will see their way to some mode of extricating ourselves and the United States from this difficulty. [Hear, hear.] Is there no hope that the delay which was asked for last week may result in our being told this evening that the United States are conceding the differences that still exist as to the terms of a new treaty? The difference which remained when the late government went out of office was so small that some arrangement ought to be arrived at on it. [Hear, hear.] The act of 1870 was a good act and has produced much good; but can any one say that it had attained the perfection of human wisdom on this matter? It is certainly the opinion of many competent persons that it could be made more elastic as regards the extradition of ordinary criminals without in the least degree affecting the right of asylum to political offenders. [Hear, hear.] There is another suggestion which I venture to throw out: It was proposed eight years ago that instead of treaties we should have a law applicable to the demands of all countries for the extradition of criminals, without troubling ourselves whether the other countries responded or not. It was considered at the time, and it was decided that it was better to proceed by treaties under a general law. But times are now changed. We have treaties with nearly all the principal countries in the world except Russia and the United States. If we passed such a law, being of a reasonable character, and somewhat more elastic than the present, it is almost certain that the United States would avail themselves of it, and would, as has already been suggested to them in America, pass a law on their side. It is for the interests of both countries to obtain their own fugitive criminals, and it is not in their interest to monopolize the possession of the fugitive scoundrels of other countries. [“Hear, hear,” and laughter.] I should prefer a new treaty cordially agreed to, but I throw out this suggestion in case Her Majesty’s government find difficulties arising in negotiation for a treaty, which would not occur in separate legislation. But whatever the course may be which Her Majesty’s government think fit to pursue, this house will agree with me in the conviction that the government will not be satisfied with having written a smart argumentative dispatch to conclude the discussion, but will apply themselves heartily to the work of changing a state of things which Sir Robert Peel eloquently denounced more than a quarter of a century ago as a public disgrace, viz, that two such countries as Great Britain and the United States should each consent to remain a refuge for the criminals of the other country. [Cheers.]

The Earl of Derby.—Before I go into the main question which the noble earl has raised, I may be allowed to refer to the request I was reluctantly compelled to make on last Friday night for a postponement of this discussion until to-day. I had up till that time hoped to be able to make a statement this evening material to the actual condition of the facts. Since Friday I have received no communication on the subject, and I am not at present in a position to make any such statement to the house as I had hoped to do. My only justification, therefore,” for asking for delay on Friday last is that I did not ask it for my own convenience or in the interest of the government, but for the interest of the public. [Hear, hear.] The question which the noble lord has raised, has been so long and so often before the public that all the facts and the arguments on both sides, embodied in the late correspondence, are presumably familiar to all who have cared to acquaint themselves with the subject. I propose, therefore, in explaining the course which the government has taken, to confine myself as far as possible to a general statement of the principles on which we have acted. Putting it briefly, the controversy between the American Government and ours is this: We take different views of what is meant by extradition and of the construction which is to be placed on the treaty between the two countries. The American contention is that when the forms prescribed by treaty have been gone through, and when extradition has once been effected, the person so extradited is for all purposes in the hands of the government which has received him, although he may have been acquitted of the charge on which the extradition was granted, although in the original demand for his surrender no mention was made of any other imputed offense, and even although the offense for which he is put on his trial a second time may be one not included in the list of extradition crimes. They argue, in short, that, once in their hands, and having been tried for the extradition offense, he remains in their hands for all other purposes. We, on the other side, contend that a person who has taken refuge in England, and has been surrendered after certain legal proceedings, for the purpose of being tried on a specific charge, is only lent, so to speak, to the government which claims him for the purposes of that trial; and if, upon the charge so brought, he is not found guilty, then we say he is entitled to his freedom, and cannot be claimed again, except after a repetition of the preliminary inquiry which is necessary before extradition is granted, which, of course, implies that he must have an opportunity of returning to England. These are the two opposite views which are represented in the correspondence, and which each side has endeavored to support by argument. The American case seems to rest mainly on this, that the treaty contains no express stipulation on the subject; that it simply provides a method by which the accused person shall be surrendered to the government claiming him, and that, in the absence of anything said to the contrary, the government or the courts of law once legally in possession of the man, are personally entitled to deal with him, subject to no restraint except that which is imposed by its own laws. They further argue that on certain occasions the right which they claim has been exercised and no objection made, and that it has been exercised in England, by English courts, as well as in the United States. We admit that the treaty contains no stipulation on the subject, the case, as we conceive, not having been provided for by those who framed it. Bat, on that part of the case, our answer is that the right which they claim is contrary to the general spirit and intention of the treaty; contrary to what has always been understood as the practice, contrary, also, to the principles laid down both by the British Parliament and the American Congress. We contend that the government surrendering an accused person does so only after having satisfied itself by means of a judicial inquiry that there is a reasonable prima facie case which justifies the putting him on his trial—just as no man can be tried here without first being committed by a magistrate, or, in some cases, without a true bill being found against him. It is also necessary that it should be shown to the satisfaction of the magistrate so committing the person for extradition that the offense of which he is charged is included among extradition offenses, and is not political in its character. Now, we say that both these safeguards are absolutely done away with if it is understood that a man extradited for one offense can be tried for another without a fresh extradition being made. A man is charged, say, with forgery. Extradition is granted. He is tried in America and acquitted. It is clear that if all the facts which came out on the trial had been known to the committing magistrate he would not have been extradited at all on that charge. What right, then, has the state, which has only got hold of him as presumably guilty of that offense, to deal with him on another charge in a way that they could not have done if he had not been in the first instance unjustly accused? They are, in such a case as I have supposed—I use the phrase in a legal and not in a moral sense—taking advantage of their own wrong. They have already subjected him to a forced deportation across the Atlantic, and to the inconvenience of a trial which has ended in his acquittal, and they then take advantage of having him in their possession—which, as the facts have turned out, they never ought to have had—to try him for something else as to which, if he had remained in England, it is quite possible that extradition would never have been granted. If we admit, as we must, that the treaty is silent on the subject, that it includes no express words to meet this class of cases, it seems to me that we are fairly entitled to contend that this is not a proceeding contemplated when the treaty was framed, or reconcilable with its general spirit. The treaty says: “Before a man is surrendered to take his trial there must be a preliminary inquiry in the country which gives him up.” The American construction of the treaty says: “He is entitled to such preliminary inquiry in regard to the first offense for which we put him on his trial, but for any other offenses, however many, or of whatever kind, there need be no preliminary inquiry whatever.” Now, that is just the one position which seems to me at least logically untenable. You may argue for the necessity of preliminary inquiry in all cases; you may argue on the other hand that such investigations are an unnecessary form, because if you trust the government to which you surrender the man, you may be assured, without such inquiry, that they will try him fairly, and if you don’t trust the government to deal fairly, you should not surrender him at all. Either of these alternatives, I think, is fairly defensible, but it is not consistent with either theory to say: “We will give the accused the security of a previous inquiry in regard to the first offense for which he is tried, but we will not give it him in regard to any other charge subsequently brought against him.” [Hear.] But as regards the intention of our government and Parliament we are not left to mere abstract reasoning or inference. We know by the act of 1870 what was and is the mind of the legislature on the question of principle involved. The act of 1870 provides that no surrendered fugitive shall be tried in the country which has demanded his extradition for any offense other than the extradition crime proved by the facts on which the surrender is grounded. Words cannot be plainer. Now, I don’t quote the act, as I have been understood to do in America, as having a retrospective effect on treaties previously concluded. I fully admit that there is a proviso which, though obscurely worded, seems to except, and no doubt was meant to except, the case of treaties actually in force. I have a right to say that it is obscurely worded, for three judges who endeavored to construe it expressed doubt as to its meaning. It could not, in fact, be otherwise, because if the provisions of the treaty of 1842 had been retrospectively affected by the act of 1870, it would have been a matter of necessity either to alter the treaty or to modify the act. But I do quote the act as showing what is the principle which Parliament has laid down, and also as showing that that principle was not considered inconsistent with the treaty. If it had been so considered, does anybody suppose that the two would have been allowed to remain side by side? We could not maintain—the government of the day never surely intended to maintain—in a question affecting the administration of justice, one rule for countries which had made treaties with us before 1870 and another for those that had not. If, therefore, we left the act of 1870 to stand side by side with the treaty of 1842, it could only have been because we did not think them inconsistent in principle the one with the other. But I do not rest on that alone. In the English act of 1843, passed immediately after the conclusion of the treaty, the secretary of state is authorized to order the delivery of the person committed to an officer who is “to convey such person to the territories of the United States, to be tried for the crime of which such person shall be so accused.” And not only that, but the United States Legislature adopted almost identical language. The act of Congress of 1848 follows the very words of ours, and says that the accused person who is extradited from America shall be delivered up to be tried for the crime of which such person shall be so accused. Now, without wishing to lay too much stress on a phrase that seems to me very nearly equivalent to saying that he is not to be tried for any other crime except that of which he is so accused, the words are not required, and, indeed, have hardly a meaning, if you put any other construction upon them. The noble earl says: “The United States do not put that sense upon it, and you are very bold if you question their construction.” But it is written in English, it is following the words of the English act, and surely an Englishman may venture to construe plain words. [Hear, hear.] Sir Thomas Henry advised that in a new treaty words should be inserted to make the meaning plain, and the noble earl wants to know why he did so. It is contended, however, that it is no longer open to us to maintain the construction of the treaty for which we argue, because we ourselves have, on various occasions, accepted a different interpretation. Now, I do not want to go into more detail than I can help, but I will take these various cases one by one. There is the case of Heilbron. He was surrendered by the United States on a charge of forgery, and tried in a British court for that offense. He was acquitted of forgery but convicted of larceny. He never appealed against the conviction, nor did the United States take the matter up; and, as a matter of fact, there is no reason to suppose that the circumstances of the conviction were even known to the government here. It cannot be said, therefore, that in this case there was any admission on our part. The court was not able to take into consideration the question of treaty, and it does not appear to have been ever before the court. The question, in fact, was never decided, because it was never argued or raised. The case of Bouvier was a case which arose under the extradition treaty with France. In that case again no action was taken or required to be taken by the government, the French law making it impossible that the man should be tried for any offense except that on which he was extradited. The only noticeable point in this case was that the Attorney-General for the time being, in the year 1872, that is in a government of which the noble earl opposite was a member, is reported to have said that “it was the law of France, and of every civilized country, that a man given up for an extradition offense should not be tried except for the offense for which he was given up. For this government to give a man up otherwise would be a most serious infringement of the right of asylum.” We have never laid down the principle more strongly. I do not see how it is to be reconciled with the language held in the Canadian cases, but that is not my business. The Canadian cases are six in number. In two of them the prisoners had been surrendered by the United States, and were tried in Canada, and the courts seem to have held that being in custody they were liable to be tried for any offense which the facts might support. In two others, application was made by the United States for the surrender by Canada of prisoners who had taken refuge there, and the Canadian courts held that they were not justified, by the mere fact that the new act of 1870 did not secure these against trial for any other offense in refusing to give them up. That is not a decision on any other point except the wording of the act of 1870. It does not bear, as far as I can see, on the question of treaty construction at all., In all these four cases, if I am right, there is absolutely nothing to show that the home government was consulted at all; and I need not say that the decision of a Canadian court of justice cannot bind the government here, which probably knew nothing of the matter. The two remaining cases were those of Burley and Caldwell. Burley was surrendered by the Canadian government to the United States on a charge of robbery. It was represented to the British government that there was an intention of trying him on a charge of piracy, which had not been mentioned in the demand for his extradition. Upon that the law officers were consulted; they reported, no doubt, in a sense partially favorable to the present American construction of the treaty. But they advised that it was our right to protest against any attempt to change the ground of accusation. A protest was made accordingly, and led to a reply from Mr. Seward, which is so important that I wish to quote it at length:

“Mr. Seward to Mr. Burnley.”

“Department of State,
“Washington, March 20, 1865.

“Sir: I recur to your note of the 15th of March, which relates to B. G. Burley. The honorable the Attorney-General informs me that it is his purpose to bring the offender to trial in the courts of the States of Ohio and Michigan for the crimes committed by him against the municipal laws of those States—namely, robbery and assault with intent to commit murder. He was delivered up by the Canadian authorities upon a requisition which was based upon charges of those crimes, and also upon a charge of piracy, which is triable not by State courts, but by the courts of the United States. I am not prepared to admit the principle claimed in the protest of Her Majesty’s government, that the offender could not legally be tried for the crime of piracy under the circumstances of the case. Nevertheless, the question raised upon it has become an abstraction, as it is at present the purpose of the Government to bring him to trial for the crimes against municipal law only.

“I have, &c.,

“W. H. SEWARD.”

Mr. Seward, therefore, was under the impression—though I believe it proved to be a mistake—that piracy was among the charges on which Burley was surrendered. It does not seem that the protest was renewed, and our, official knowledge of the facts ends here. Mr. Fish in his recent note says that he was tried for assault with intent to kill, but that is a fact of which till this correspondence we had no information. The case of Caldwell is generally similar. He was surrendered by the Canadian government on a charge of forgery. He was subsequently indicted in the United States for bribing a custom-house officer, as well as for the forgery. He pleaded that the court ought not to take cognizance of the offense; the court overruled the plea on the ground that it was one for the governments concerned to entertain, but which could not be dealt with by a court of law. He therefore appealed to the Canadian government. The matter was referred home, and the law officers advised that the case was not one in which Her Majesty’s government would be justified in claiming his surrender. He had at that time not been tried for the extradition offense; and it was intended to put him on his trial for that offense. The decision not to interfere in the matter was communicated to the governor of Canada, and there the case ended so far as we are concerned. Now, I am not about to deny that these two cases show clearly enough that the view of our international duty taken by the then law-officers is different from that which we have been advised to adopt. [Hear, hear.] But I deny altogether that that difference of views disposes of our case. [Hear, hear.] I speak with the highest respect of the legal advisers of the governments of 1864 and of 1870, but they would not claim that their opinion could bind their successors. And observe this, that though they do not advise that in certain cases a claim should be pressed, though they express doubt whether it ought to be pressed, yet in no part of this correspondence has the claim ever been abandoned. We have never said to the American Government that we thought it one which could not be justly advanced. We have simply forborne to press it in certain cases, and it is possible and conceivable that other motives may have operated besides those of a judicial or administrative character. I can quite understand that both in 1864 and in 1870 reasons of a political character may have indisposed the then governments to press any demand on the United States as to which in their minds any doubt may have existed. I am not attacking what they did; but I contend that to waive a right on one occasion, or on two, is not to abandon it; that the opinions of the law-officers of one government, however deserving of respect, are not international documents; and that as between the United States and England nothing has passed which amounts to an abandonment of the claim which we put forward in this correspondence. I now come to the question which I have heard raised, and which has been raised by the noble earl this evening, whether, even admitting our construction of the treaty to be defensible, we have asserted it in the right way. It is argued that we ought to have waited until some actual violation of the treaty, as we construe it, had occurred, and that we had no right to call on the United States Government to abandon their construction of it—that we ought, in short, to have taken no action unless some person surrendered by us was actually put on his trial a second time. My answer is, that is shutting the door after the horse is stolen. The question is not one of law but of reason and common sense. When it is evident that an engagement is understood by the two parties to it in a different sense, the sooner that difference is cleared up the better. What would happen if we took the course suggested? Why, that the United States Government would, sooner or later, act on their presumed right, as they had given us notice that they would do, but we should dispute the legality of their action, and that we should be obliged by our expressed opinion to demand that a prisoner actually in their hands should be given back. That is a demand with which in their view of the case they could not honorably comply, and there you have a diplomatic complication ready made. It is running all risks in the future in order to secure a respite from trouble at the moment. I hear it said, again, that the risk run by conceding the question at issue is trifling; that the inconvenience of passing it is great, and that we had better have settled the matter anyhow than have it left open. My lords, I cannot admit that, as English ministers, we are justified in treating as immaterial a principle on which Parliament six years ago laid so much stress as to embody it in express terms in an act of Parliament, passed after much inquiry and debate. Parliament might release us from the obligation which it has imposed, but we cannot release ourselves. And this principle is not unimportant. It really involves the whole question of political asylum. [Hear, hear.] I have no wish to talk clap-trap about the right of asylum, but we know how strong the public feeling is in regard to it. Now, take such a case as this: A French refugee, mixed up in the affairs of the commune, is asked for by his own government, bona fide, on a charge of non-political character. He is surrendered; he is tried and acquitted or condemned, as the case may be. But while in the hands of the French authorities it turns out that he has been mixed up in revolutionary disturbances, and after, his acquittal they proceed to try him for that. Would not that be a case which, however worthless the person might be, would excite strong feeling in England? And yet what security have you that such a case might not occur if you abandon the principle that the extradited person ought to be free to return after trial on the extradition charge? It is argued, there is no fear of any question of the kind arising with the United States, because their feeling in such matters is the same as ours. To that I have a double answer. In the first place it is not wise in matters of business to rest on the supposed dispositions of other powers as your sole guarantee. We do not in private life suppose that everybody with whom we deal intends to cheat us, but we take a receipt when we pay money. But there is a further answer. You cannot have one rule for the United States and another for the rest of the world. Your extradition law must be the same for every country. Any other course would be invidious and untenable; and it is carrying confidence very far to affirm that no government exists anywhere to which you would not be ready to trust in a matter of this kind. I might push the matter still further. In the event of any person being put on his trial in the United States for a political offense, it would not be in the power of the Government to prevent the trial. Such is in brief our case. I cannot take your lordships through the argument in detail, as it is set out in the published correspondence. But I may remind you of one fact—that there have been negotiations going on for a new treaty, which extended over a considerable time. In the draught of that new treaty we proposed an article embodying the principle for which we are now contending, and the Government of the United States, so far from objecting, accepted the article, and did more: they proposed to strengthen it by words which should make the meaning clearer. The failure to conclude a new treaty turned on an altogether different point; but upon this point the governments were absolutely as one. One thing to say this or that should be put in a treaty; another to say it is there. I think that is evidence that there is nothing in principle unreasonable in the view we have taken, and also—what is quite as important—it shows that there is no such difference between the two countries as should prevent the negotiation of a new treaty. Nobody is insensible on either side the water to the inconvenience that would be caused by an even temporary suspension of extradition. The two countries have absolutely the same interests, and the differences are not of a kind to be very difficult of arrangement. (Hear, hear.) We shall at once renew the negotiation formerly interrupted; it will be an advantage to all parties, for everybody admits that the old treaty is imperfect and unsatisfactory, and what I think we ought to aim at is the establishment, if it is likely that the negotiations will last some time, of what diplomatists call a modus vivendi, a provisional arrangement which shall prevent rascals from benefiting by the falling out of honest men. I do not think it is a disadvantage that this question should have arisen. There is an ambiguity in many respects in our extradition treaty with the United States, and there are many reasons for superseding it by a new one, and we shall do all in our power to see that that is done. (Cheers.)

The Earl of Kimberley said there was no dispute as to the right of asylum being maintained, and with the observations made on this point by the noble earl he fully agreed. Our duty seemed to him to be to refuse to deliver up any offender who, there was reason to believe, would be put on his trial for a political offense. In the case of a person being surrendered for one crime and being tried for another of a similar kind, he did not think we had any right to interfere. It was the common interest of all civilized peoples that crime should be punished, and it did not seem to him to be our duty to scrutinize narrowly the criminal law of foreign countries. All we had to do was to guard against criminals being tried for political offenses in addition to the crimes for which they were surrendered. If they were tried for offenses other than political, surely we had no interest in interfering. So far as the interpretation of the treaty of 1842 was concerned, the act of 1870 might practically be left aside, for it could not introduce any new conditions to be observed. The treaty itself was the only document which could properly be taken into consideration in forming an opinion on the subject. Now, in the treaty the sole condition laid down for the surrender of a criminal was that there should be sufficient prima-facie evidence shown to put him on his trial, and if any other condition was intended to apply, the absence of all mention of it was incomprehensible. Surely the natural presumption in this case was that no condition other than that laid down in the treaty was intended to take effect. The United States Government very justly remarked that the view taken by our government had not always been adopted in England. Indeed, he did not understand how the noble earl opposite, in view of the cases before him, could have asserted, as he did in one of his dispatches, that one of the essential principles of extradition, as invariably practiced in this country, was that an extradited person could only be tried for the crime on which he was surrendered. The fact was that two previous governments had taken a different view, and in making the statement which he did the noble earl certainly gave an advantage to the American Government. He (Lord Kimberley) could not help thinking that the error of the foreign office was due to the great haste with which the matter was considered, only two days having elapsed from the time the subject was brought under the notice of the noble earl till he committed himself to the view, taken without sufficient inquiry, as it appeared, by the home secretary. The law-officers were not consulted till a later date, and it was rather a singular fact that their views were never referred to in the correspondence. He was inclined to think that if the noble earl, the foreign secretary, had waited until he saw what the issue would be, neither Lawrence nor Winslow would have really been tried for any other offense than the one on which they had been surrendered. And, considering that there was no actual breach of the treaty, and looking to the disposition which the United States Government had shown not to press their view to the utmost, he believed that the noble earl might, with a little more patience and forbearance, have saved the treaty from the abrupt termination at which it had, unfortunately, arrived.

Earl Grey could not help thinking that in that discussion the importance of what was called the right of political asylum had been exaggerated in a manner which was likely to lead to dangerous consequences. He admitted that it was not fit that this country should give up to the vengeance of a tyrannical government men who had risked their lives to obtain liberty for their country; and no doubt we should be utterly disgraced if we surrendered men who had stood out against such a government as that of the late King of Naples, or against such an act as the partition of Poland. But he held that the attempt to resist by force a settled government which performed, even perhaps imperfectly, the duty of all governments in maintaining peace and order, was a crime which, unless provoked by extreme oppression, was not only legally and technically, but morally, one of the greatest that men could commit. Looking at the enormous amount of evil which arose from civil war, he said that those who acted in that way were not entitled to the sympathy of mankind. Therefore he thought it was a great mistake to say that because there was some possible danger that in some very unlikely case a man might be punished for what was in itself an offense—namely, resistance to a settled government—in consequence of the measures they adopted to protect society against ordinary criminals, they were to neglect to make the arrangements with other countries which were absolutely necessary for the prevention of crime. The perils to society and to the maintenance of order would be very great if they were to push to the extreme which had been recommended from both sides of the house that claim to political asylum at the risk of preventing the surrender of ordinary criminals. They should take care how they establish a state of things which would offer enormous inducements to men, either in England or in America, who might think there was an opportunity by some great crime of realizing a large sum of money and then going to the other side of the Atlantic to enjoy their spoil in peace. He found from the correspondence that the secretary of state contended that no man should be tried in the country to which he was surrendered except for the one offense on which his surrender had been demanded. He believed that the American Government were perfectly right in saying that there was no provision of that kind in the treaty of 1842, and that in the absence of any such provision we had no right now to introduce that rule. Was it desirable, when they surrendered a man who was bona fide accused of one particular offense, that he should not be tried, convicted, or punished for any other offense which in the course of the proceedings it might come out that he had committed? He said that that was contrary to the common interests of all civilized society. A remarkable case lately occurred which proved the inconvenience of such a rule. A number of men were tried in this country for a most atrocious crime on board the Lennie. Some of them were convicted, and were most properly hanged; but the others, who were accessories after the fact, because of an arbitrary rule laid down in our extradition treaty with Franee, entirely escaped from punishment. But what would be the consequences were the view of Her Majesty’s government in this case to be adopted permanently? Winslow had been charged with having committed fourteen or fifteen distinct cases of forgery; but witnesses had been sent to this country from the United States in support of one charge only. In the event of his being surrendered he ought, in the view of Her Majesty’s government, only to be tried upon that one single charge, and therefore if, through the chances of the law, he succeeded in escaping from conviction upon that one charge, the United States Government would be precluded from trying him upon any of the other charges, and the end might be that a notorious criminal might get off altogether. Such a result would not, in his opinion, be for the advantage of the civilized world. (Hear.) The subject seemed to him to have been dealt with upon a wrong principle—that of an undue fear for the security of political offenders. Taking into consideration the close relation that existed between this country and the United States and Canada, the evil that would result from the immunity of fugitive criminals would be enormous. It was, therefore, with much regret that he heard the noble lord opposite say that our action on this subject must be largely influenced by a feeling of sympathy for political offenders. If the people of this country were unduly influenced by that feeling, it was the duty of the statesmen and the leading men in both houses of Parliament to endeavor to set them right on the point, and to show them that it was not for the sake of maintaining the freedom of political offenders, on behalf of whom too often an undue amount of sympathy-was excited, that we should run the risk of allowing ordinary criminals to escape a just punishment. There was another and a very important point on which he wished to make a few observations. He had observed with great regret that the papers on this subject which had been laid before Parliament were additional examples of a mistaken system which had grown up of late years, under which the differences of opinion entertained by the various departments were exposed to the whole world. It appeared to him that that practice was calculated to break down and destroy the authority of government. The proper course would be for the cabinet to take the responsibility for these decisions upon themselves, instead of allowing these discussions to be made public. The inconvenience of the practice had been illustrated in the present case, where the United States minister had been able to quote the opinion of one department against that of another. (Hear, hear.)

Lord Hammond, having been referred to several times in the course of this debate as having given evidence before the committee of 1868, wished to make a few remarks on the question before the house. The attention of that committee had been very specially directed to two points, namely, the surrender of persons accused or liable to be accused of political offenses, and the liability of parsons surrendered for ordinary crimes to be tried only for the offense for which their surrender might have been in made. With regard to the propriety of exempting persons surrendered from being tried for any offense other than that for which they might have beau surrendered there was no material difference of opinion between the witnesses, they all agreeing that it was desirable to provide against such a case. He had himself expressed a decided opinion that, according to existing law and practice, no objection could be raised to the subsequent trial of a surrendered criminal for any other crime besides the particular crime for which he was surrendered, provided that he had been bona file tried for that crime. In conclusion, the noble lord suggested that the tenth article of the Ashburton treaty should at once be denounced by Her Majesty’s government, if it had not already been so denounced by the Government of the United States. After what had passed, it seemed hopeless to attempt to negotiate on the basis of that particular article; but when a sufficient time had elapsed to admit of both countries feeling the inconvenience of no extradition treaty existing between them, it might be possible to come to an arrangement with the United States Government founded on the act of 1870.

Lord Coleridge entirely concurred in opinion with the noble earl who raised this discussion. When the case of Caldwell occurred, his right honorable and learned friend Sir Robert Collier was attorney-general and he himself was solicitor-general. He then held the opinion, which he still entertained, that there was no ground for the view which had been maintained by the noble earl opposite. It happened, too, that the proceedings in the French case which had been referred to were taken under the advice of himself, as attorney-general, his learned friend, the present master of the rolls, being then his colleague as solicitor-general. They were both of opinion that the view brought forward to-night by the noble earl near him, (Earl Granville,) was the true view which this country ought to maintain on the subject now under discussion. He and his learned friend had in other cases also to advise on their own responsibility the executive government of that day, and the view now put forward as to the strict construction of the act of 1870 never occurred to their minds. Whether the opinions held by him and his learned friend were right or wrong, others of course must determine, but at all events those opinions were not taken up lightly or for any political motive. He had always been of opinion that the act of 1870 could not in any fair construction be considered to have any bearing on treaties which, under statutes previously passed, themselves claimed the force of law. Indeed, his argument in the French case was that the French treaty was in no way affected by the act of 1870. The treaty with France was the same, for the purposes of this discussion, as the treaty with the United States. It was couched, as far as this matter was concerned, in substantially the same language, and it wanted the provision the absence of which gave rise to the present debate. The argument he adduced before the Court of Queen’s Bench was that we were not only justified but bound to surrender to the French government the person to be tried, without there being a special arrangement in a particular case that he should not be tried for any offense except that for which he was extradited. The majority of the judges of the Court of Queen’s Bench assented to the correctness of that argument. The only dissentient, if indeed he could be called a dissentient, was Mr. Justice Blackburn, who, however, did not doubt the intention of the legislature, although he thought it had not been expressed with sufficient precision in the act of 1870. His contention was that the Court of Queen’s Bench had distinctly expressed its opinion that the act of 1870 could not have any retrospective effect on the treaty of 1842. It was clear that if we attempted to enforce upon somebody else a provision not contained in the contract, we should be endeavoring to enforce something that was inconsistent with it. (Hear, hear.) The argument that we had always acted on the understanding hat the person delivered up should be tried only for the offense for which he was extradited, and that this understanding had been imported as an arrangement into all the treaties made prior to the act of 1870, appeared to him to be equally without foundation. In the first place he denied that we had in all cases maintained and acted upon such an understanding. The contention of the Government amounted to this— that a breach of the most technical rules in the construction of a treaty which ought to have the largest and most free construction between two great nations might make extradition in any case utterly useless. Take, for example, the case of Lawrence, who was said to be guilty of a long course of wholesale fraud. How, he should like to know, could all those charges be dealt with in a foreign country? There was a case now pending in our courts in which there were 145 different counts, each constituting a separate offense, and was it to be supposed that every one of those could be carefully gone into on the other side of the channel with endless trouble and at enormous expense, or that a criminal should go scot free for the fear the sacred right of asylum should be violated? He would not, at that hour, enter into the distinction which had been taken by Mr. Fish, and the answer of the noble earl opposite as to the meaning of the section of the act of 1870. He would content himself simply with observing that he thought the argument of Mr. Fish was entitled to a little more consideration than it had received at the hands of the noble earl. In conclusion, he had only to say that while the right of asylum was a right of which this country was justly proud, and while we most gladly welcomed political refugees to our shores, there was no good reason why we should welcome criminals in the ordinary sense, or look upon them as anything but most unwelcome refugees. (Hear, hear.)

The lord chancellor having remarked that the state of the house (there were only about a dozen peers present) did not give much encouragement to continue the conversation, and that more than one noble lord who had already spoken had retired without waiting to hear the answer to his arguments, went on to observe that there was a certain amount of inconvenience attending the way in which the subject had been brought on for discussion, inasmuch as no decided question had been raised. In the other house of Parliament he pointed out that Sir W. Harcourt had given notice of a motion to the effect that it was desirable to reconsider and amend the law relating to extradition with the view of providing more effectually for the execution of justice in the case of offenses not being of a political character. That notice indicated that in the opinion of that honorable and learned gentleman the law as it now stood was insufficient and required alteration; but the argument of the noble earl that evening, was not that it was desirable to amend the law, but that the Government had incorrectly interpreted , it in their dealings with the United States. Now, he was one of those who had long held that very considerable modifications in our law of extradition were desirable, although he did not mean at present to say a single word on the character of those modifications. That was a subject for negotiation, and he would on that occasion simply address himself to the law as it stood. [The noble and learned lord had proceeded thus far when he was seized with what apparently was a slight fit of coughing, which prevented him from going on with his speech, and he quitted the house, observing before he left that if it were thought desirable he would move the adjournment of the debate.]

Lord Redesdale then took his seat on the woolsack, and after a few words from Lord Selborne expressive of his regret at the cause which had obliged the lord chancellor to retire from the house,

The debate was adjourned till to-morrow with a view to another day being then fixed upon for its resumption.