No. 345.
Mr. Dart to Mr. Cadwalader.
Montreal, April 7, 1876.
Sir: Referring to the negotiations now pending between the United States and the government of Great Britain in reference to the extradition of Winslow, forger, late of Boston, I cannot resist the temptation to give to the Department of State, although it may be of no value, two precedents established by the judges of the Dominion of Canada under the Ashburton treaty. The first arose at the October term of the Queen’s Bench, 1863, in this district, when one Henry Martin was sought to be indicted for the crime of arson. The grand jury rejected the bill of indictment. He was then indicted for the crime of attempting to commit arson, upon which he was tried, convicted, and remanded to jail to await sentence. He broke jail before sentence, and escaped to the United States. He was arrested at Saint Albans, Vermont, before Commissioner Houghton, on a charge of an attempt to commit arson, and was discharged because that was not an extraditable offense. He was then charged with arson, and extradited. On the 19th of February, 1864, he was tried before the Queen’s Bench for breaking jail, convicted, and sent to the penitentiary for three years, and seven years for an attempt to commit arson, of which offense he had been previously convicted. The point was taken before the court that he had been extradited for the crime of arson, and could not be tried for any other offense. This point was overruled by the judge. The Dominion government was applied to, as well as our own, to release the man on the ground that his conviction was in violation of, or in fraud of, the Ashburton treaty. The McDonald administration sustained the ruling of the judge.
[Page 620]The next case was the Queen against John Paxton, at the October term of the Queen’s Bench, in Montreal, 1866. The prisoner was extradited from Chicago for the alleged offense of forgery, and was put upon his trial upon a charge of uttering a forged promissory note, knowing the same to be forged. The prisoner’s counsel plead to the indictment, as a matter of fact, the facts above stated; the Crown prosecutor took issue, and a jury was impaneled to try the issue of facts so joined; the jury rendered a verdict that the prisoner was extradited from Chicago upon the alleged crime of forgery. The judge ruled that he could not be tried for any other offense. Upon an appeal, however, to the court of review, a majority of the judges held that the question of fact was immaterial, reversed the decision of the judge at nisi prius, and ordered the prisoner to plead to the indictment, upon which he was subsequently tried and convicted. (See Lower Canada Reports, volume 10, page 212.)
* * * * * * *
So far as relates to Canada, in 1868 the Dominion government of Canada passed an act giving effect to the Ashburton treaty without the conditions contained in the imperial act, and which is still in force, and the judges here hold that they will extradite a criminal without any guarantee that he shall not be tried for any other offense. Waiving, therefore, the argument that the Parliament of Great Britain cannot, by a statute, impose conditions upon a treaty foreign to its provisions, it is claimed that by the imperial act itself its conditions are expressly waived as to those treaties, then in existence, with which the imperial act would be inconsistent.
I have the honor to be, very respectfully, your obedient servant,
Consul-General.
Hon. John L. Cadwalader,
Assistant Secretary of State, Washington, D.
C.