Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 2, 1878
No. 179.
Mr. Welsh
to Mr. Evarts.
London, June 22, 1878. (Received July 3.)
Sir: I have the honor to inclose a copy, which I have asked to have furnished to me at the earliest possible moment, of the reports to the Queen of the commissioners appointed by Her Majesty to consider the subject of the laws and treaties relating to the extradition of fugitive criminals.
It gives me great pleasure to state, from the very cursory manner in which I have been able as yet to examine this document, that it recommends substantially the views in regard to this important matter which have always been entertained by the Department of State and by my predecessors at this post.
I have, &c.,
Royal commission on extradition.—Report of the commissioners.
commission.
Victoria R.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith, to Our right trusty and well-beloved Councillor Sir Alexander James Edmund Cockburn, Bart., Knight Grand Cross of Our Most Honourable Order of the Bath, Lord Chief Justice of England; Our right trusty and well-beloved Councillor Roundell, Baron Selborne; Our right trusty and well-beloved Councillor Colin, Baron Blackburn, one of Our Lords of Appeal in Ordinary; Our right trusty and well-beloved Councillor Russell Gurney, Recorder of Our city of London; Our right trusty and well-beloved Councillor Sir Richard Baggallay, Knt., One of Our Ordinary Judges of Our Court of Appeal; Our right trusty and well-beloved Councillor Sir William Baliol Brett, Knt., one of Our Ordinary Judges of Our Court of Appeal; Our trusty and well-beloved Sir John Rose, Bart., Knight Commander of Our Most Distinguished Order of Saint Michael and Saint George; Our trusty and well-beloved Sir James Fitzjames Stephen, Knight Commander of Our Most Exalted Order of the Star of India, one of Our Counsel learned in the Law; Our trusty and well-beloved Sir William George Granville Vernon Harcourt, Knt., one of Our Counsel learned in the Law; and Our trusty and well-beloved William Torrens McCullagh Torrens, Esq., Bachelor of Laws, greeting:
Whereas We have deemed it expedient that a Commission should forthwith issue to inquire into and consider the working and effect of the Law and Treaties relating to the Extradition of Persons accused of Crime:
Now know ye, that We, reposing great trust and confidence in your knowledge and ability, have authorised and appointed, and do by these presents authorise and appoint you, the said Sir Alexander James Edmund Cockburn; Roundell, Baron Selborne; Colin, Baron Blackburn; Russell Gurney; Sir Richard Baggallay; Sir William Baliol Brett; Sir John Rose; Sir James Fitzjames Stephen; Sir William George Granville Vernon Harcourt; and William Torrens McCullagh Torrens, to be Our Commissioners for the purposes aforesaid:
And for the better effecting the purposes of this Our Commission, We do by these presents give and grant unto you, or any three or more of you, full power and authority to call before you such persons as you shall judge likely to afford you any information upon the subject of this Our Commission, and also to call for, have access to, and examine all such books, documents, registers, and records, as may afford the fullest information on the subject, and to inquire of and concerning the premises by all other lawful ways and means whatsoever:
And We do by these presents will and ordain that this Our Commission shall continue in full force and virtue, and that you, Our said Commissioners, or any three or more of you, may from time to time proceed in the execution thereof, and of every matter and thing therein contained, although the same be not continued from time to time by adjournment:
[Page 269]And We further ordain that you, or any five or more of you, may have liberty to report your proceedings under this Commission from time to time, if you shall judge it expedient so to do:
And Our further will and pleasure is that you do, with as little delay as possible, report to Us, under your hands and seals, or under the hands and seals of any five or more of you, your opinion upon the several points herein submitted for your consideration;
And for your assistance in the execution of this Our Commission, We have made choice of Our trusty and well-beloved George Edward March, Esq., to be Secretary to this Our Commission, and to attend you, whose services and assistance We require you to use from time to time, as occasion may require.
By Her Majesty’s Command.
additional commission.
Victoria R.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith, to Our trusty and well-beloved Alfred Henry Thesiger, Esq. (commonly called The Honourable Alfred Henry Thesiger), one of Our Counsel learned in the Law, greeting:
Whereas We did by Warrant, under Our Royal Sign Manual, bearing date the eighteenth day of August, one thousand eight hundred and seventy-seven, authorise and appoint Our right trusty and well-beloved Councillor Sir Alexander James Edmund Cockburn, Baronet, Knt. Grand Cross of Our Most Honourable Order of the Bath, Lord Chief Justice of England, together with the several Noblemen and Gentlemen therein named, or any three or more of them, to be Our Commissioners to inquire into and consider the working and effect of the Law and Treaties relating to the Extradition of Persons accused of Crime:
Now know ye, that We, reposing great trust and confidence in your zeal, discretion, and ability, have authorised and appointed, and do by these presents authorise and appoint you, the said Alfred Henry Thesiger, to be a Commissioner for the purposes aforesaid, in addition to and together with the Commissioners whom We have already appointed by the above-mentioned Royal Warrant:
By Her Majesty’s Command.
report.
To the Queen’s most Excellent Majesty:
By Your Majesty’s commission we are directed to inquire into and consider the working and effect of the law and treaties relating to the extradition of persons accused of crime. Having inquired into and considered the subject so referred to us, we humbly submit to Your Majesty the following report:
I. The extradition of fugitive criminals is founded on a twofold motive:
- 1.
- That it is the common interest of mankind that offenses against person and property, offenses which militate against the general well-being of society, should be repressed by punishment, as the means of deterring others from committing, as well as of deterring the criminal himself from repeating the offense, as also of disabling the offender, either permanently or temporarily, from further crime.
- 2.
- That it is to the interest of the state into whose territory the criminal has come that he shall not remain at large therein, inasmuch as from his past conduct it may reasonably be anticipated that, if opportunity offers, he will again be guilty of crime. No state can desire that its territory should become a place of refuge for the malefactors of other countries. It is obviously its interest to get rid of them.
On the first of these grounds we may reasonably claim from all civilized nations that they shall unite with us in a system which is for the common benefit of all; in other words, that they shall concede to us reciprocity in the matter of extradition. But, looking to the second and narrower ground, it seems to us that, even if any state should fail to concede full reciprocity, there is no principle which should make this country unwilling to surrender, and so to get rid of, the fugitive subjects of other states who have been guilty of crime, and whose surrender is asked for.
We would, therefore, suggest that extradition treaties with other states, which appear to be practically of use only for the purpose of insuring reciprocity, should no longer be held to be indispensable, and that, while the power in the Crown of entering into extradition treaties with other nations, as now existing by statute, should still be retained, statutory power should be given to the proper authorities to deliver up [Page 270] fugitive criminals whose surrender is asked for, irrespectively of the existence of any treaty between this country and the state against whose law the offense has been committed. It is as much to our advantage that such criminals should be punished, and that we should get rid of them, as it is to that of the foreign state that they should be brought within the reach of its law.
Inasmuch, however, as treaties may sometimes be necessary (by the laws or constitution of foreign states) to enable effect to be given to conditions on which the government of this country may properly insist, and as it might in other cases prove an obstacle to negotiations for treaties or extradition arrangements, into which the government of this country might think it desirable to enter, it this general statutory power were made applicable to all other countries, without the exercise of any option or discretion by the Crown, it may be expedient to provide that the act shall extend only to those foreign states to which it may from time to time by order in council be declared to apply. It may be assumed that such order in council would be made, whenever there was a treaty or other binding arrangement with a foreign state; and also whenever the British Government was satisfied that provision was sufficiently made by the law of a foreign state for all the objects on which it might be deemed the duty or the policy of this country to insist.
II. With reference to both the principles to which we have adverted, it is obviously immaterial whether the fugitive criminal is a subject of the state demanding his surrender, or a subject of the country from which it is claimed. The matter is not, however, altogether free from difficulty, and in most of the existing treaties a stipulation is contained that a fugitive criminal, if a subject of the state in which he is found, shall not be surrendered in respect of a crime committed in the other state.
In favor of such a provision it is said that a man should not be withdrawn from his natural judges; that the state owes to its subjects the protection of its laws, and that it fails in this duty if it hands over any of them to a foreign jurisdiction, and thus, deprives them of the guarantees afforded by the law of their own country; that it is impossible to place entire confidence in the justice of a foreign state, especially with regard to the subjects of another country; and that it is a serious disadvantage to a man to be tried in a foreign language, and where he is separated from his friends and his resources, and from those who could bear witness to his previous life and character. It is, therefore, contended that there should be power to try in his own country a person charged with having committed a crime in another; and that he should be tried there, instead of being surrendered to the foreign state for trial.
To this it may be answered, first, that if every criminal offense committed by a British subject within any foreign jurisdiction is to be triable and punishable here, as if it had been committed in England, this would require a most extensive change in our whole system of criminal law, which has hitherto admitted that principle in a very few cases only, depending upon special reasons, and has never recognized the duty or accepted the responsibility of exercising a general control for purposes of police or punishment over the actions of British subjects in foreign countries. Furthermore, if this argument be good for anything, every man charged with an offense in a country of which he is not a subject should, by a common arrangement between the different governments, be sent home to be tried, instead of being tried where the offense was committed; and this, though the laws of the two countries might be essentially different in respect of the quality and degree of the crime; and it should, therefore, be made competent to a person so charged to claim to be sent home for the purpose of trial—a proposition too extravagant to be entertained. The offense is an offense against the law of the country in which it is alleged to have been committed. A person commorant in a foreign country owes obedience to its law in return for the protection which it affords him as much as if he were one of its proper subjects. Why, because he has escaped beyond the jurisdiction of that law, should an offender whose surrender is asked for be in a different position from that in which he would have been in the country from which he has escaped? Extradition, as a system, is based on the supposition that in the great majority of instances the persons whose surrender is claimed have, in fact, violated the law of the country demanding the surrender. The instances in which the surrender of an innocent person may be demanded will be exceedingly rare. With the safeguards which we shall advert to further on, the possibility of an innocent man being unjustly dealt with will be remote in the extreme.
As regards the suggestion that confidence cannot be placed in the justice of foreign tribunals, it is obvious that, when we are inviting other nations to unite with us in a system of extradition, any restriction which implies a doubt of the competency or justice of their tribunals involves a striking inconsistency. Extradition is based on mutual confidence in the administration of justice by the courts of both nations. It proceeds on the assumption that impartial justice will be done to the party surrendered. We should be unwilling to surrender even a foreigner on any other assumption. It would be an affront to any nation to assume that when a foreigner is charged with an offense against its law its tribunals would not do justice to such foreigner [Page 271] as equally and impartially as would be done in the case of one of its own subjects. We know that in our own country a foreigner charged with an offense receives the same measure of justice as a natural-born subject. When the surrender of one of our subjects is asked for, we are not entitled to assume that he will not be dealt with fairly when surrendered. The alternative being, as should not be forgotten, that a criminal may otherwise escape with impunity, we must assume in all confidence that one of our subjects will find the same impartiality at the hands of a foreign tribunal as a foreigner would find in one of ours, and must act on that assumption in the belief that our expectation will not be disappointed.
As regards the matter of convenience, there can be no question as to which is the better system. It is the law of the foreign country which is alleged to have been broken. It is by that law that the fact as well as the degree of criminality and the measure of punishment should be determined. It is by those who have to administer that law alone that these questions can be properly decided.
Moreover, the witnesses are in the foreign country, and can only be brought to that of the accused at greatly increased expense and inconvenience. It is true that their evidence may be taken where they are and transmitted in a written form. But this is by no means a satisfactory mode of proceeding in the administration of criminal justice; besides which, such a mode of proceeding would obviously be attended with serious disadvantage to the accused, inasmuch as the evidence will have been taken behind his back, without any opportunity for cross-examination or inquiry as to the character or credibility of the witnesses; all which may well be deemed to counterbalance any disadvantage which may arise from his being tried out of his own country.
On the whole, we are of opinion that the stipulation in question is unnecessary and inexpedient, and we recommend that it should be omitted in future treaties; and that endeavors should be made to have the existing treaties modified in this respect.
III. As to the offenses which should be the subject of extradition:
Extradition should embrace all those offenses which it is the common interest of all nations to suppress; that is to say, offenses against person and property, including in the latter category cases of fraud the purpose of which is to obtain property or money, offenses against the bankrupt laws, forgery, and offenses relating to coinage. To these it should be confined, to the exclusion of offenses of a political or local character.
It is true that it is to the interest of every nation that by the submission of its subjects to the constituted government internal peace and order shall be maintained. But one nation can scarcely be said to have such an interest in the particular form of government, or in the particular ruling dynasty, of another as that it should be called upon to make common cause with it against political offenders. And however odious the character of the rebel who disturbs the peace of his own country and gives rise to bloodshed and disorder from interested motives or reckless disregard of the miseries attendant on civil discord, yet both from history and our own experience we know that there are exceptional instances, in which resistance to usurpation or tyranny may be inspired by the noblest motives, and in which, though unsuccessful, it may escape condemnation, and even command sympathy. It must always be difficult for a foreign nation, when political dissensions occur in another, to judge between the contending parties. Nay, such foreign nation itself may be divided in its views as to the merits or demerits of the particular cause. Influenced it may be by such considerations, the general sentiment of mankind is against the surrender of the political exile to death or other grievous punishment. To have lost his country for which he has been risking life is no small loss to such a man, no light punishment for what he may have done, and he may be suffered to rest in peace in his place of refuge. The principle hitherto adopted in the matter of extradition of excluding offenses of a political character should therefore be maintained.
But it becomes a very different thing when, in furtherance of some political or pretended political purpose, some foul crime, such as assassination or incendiarism, is committed. Thus attempts by conspirators to assassinate a reigning sovereign—regardless, perhaps, that in doing so other lives may be sacrificed—or the setting fire to a prison at the risk of burning all those within it, or the murder of the police for the purpose of rescuing prisoners in custody for political offenses are crimes, in respect of which—though the motive was a political one—we cannot think that any immunity should be afforded. Civil war and insurrection take place openly in the face of day, and may or may not be justified or excused by circumstances; but assassination or other forms of revolting crime lose none of their atrocity from their connection with political motive.
Generally speaking, we would, therefore, decline to recognize the suggestion of a political motive as a ground on which a magistrate or judge should refuse a demand for the surrender of a person accused of what (in the absence of such motive) would be an ordinary crime, unless the act, to which a political character was sought to be ascribed, occurred during a time of civil war or open insurrection. Cases, however, may occur in which it would be undesirable to surrender a person accused of a crime instigated by a political motive, even though a magistrate or judge could not pronounce [Page 272] that there existed either civil war or open insurrection, and consequently could not discharge the accused as of right. To meet this possibility a discretionary power in favor of the prisoner should be reserved to the government to refuse to deliver up a person so accused.
IV. The exclusion which we have proposed of all offenses against local laws and regulations would exclude laws of purely local interest, such as, for instance, laws relating to military or naval service, laws relating to religion, laws relating to the duties of public officers, police regulations, and the like.
V. Next as to the quality and degree of the crimes which should be the subject of extradition.
We can see no rational ground for any limitation beyond those just referred to. With regard to all others, it may safely be assumed that a foreign government will not seek to obtain the surrender of an offender for a merely trivial offense. It is equally reasonable to suppose that an offender will not become a fugitive from his country, unless to escape the punishment due to an offense of a serious character. We would therefore authorize extradition in respect of all offenses against either person or property, indictable under our law, without reference to the degree of criminality involved in the particular charge. Confining extradition to offenses against person and property, we see no necessity for any distinction between felony and misdemeanor, or for the selection of particular offenses as alone of sufficient importance to warrant the surrender of criminals. With a view, however, to certainty and precision, it becomes desirable that the offenses, in respect of which extradition may be claimed, should be specified and enumerated.
VI. If the question be asked, whether we should refuse to give up a fugitive where the offense in respect of which the surrender is asked for, though an offense against the law of the country asking it, is not an offense against our own, the answer is involved in what has been already said. The crimes in respect of which nations should make common cause against criminals, and refuse them shelter, are those which it is the common interest of all to repress. There are offenses against society in respect of person and property which in all countries there will always be found persons disposed to commit, and which can only be kept under by the strong arm of the law. It is these offenses which it should be the common purpose of all nations to endeavor to suppress by preventing those who have committed them from escaping from justice. But these offenses are known to and dealt with by the law of all civilized nations, though they may be differently dealt with both as to procedure and punishment. If some offense, unknown to the law of other nations—to what may figuratively be called the common law of nations—should be created by the law of a particular people, such an offense would not come within the category of crimes which it is the purpose of extradition to repress.
If it be asked how it is to be ascertained that the offense charged is known and recognized as an offense, the answer is that our own law will afford a sufficient test, being abundantly comprehensive as to offenses against person and property.
Besides which there is another reason for seeing that the charge in respect of which extradition is asked for is an offense under our own law. It is and always must be necessary that a prima-facie case shall be made out before a magistrate in order to support the application for extradition. But the English magistrate cannot be expected to know or interpret the foreign law. It is not desirable that he should be required to do more than to see that the facts proved constitute prima facie an offense which would have been within judicial cognizance if done in this country.
At the same time, while holding that the facts charged against the party whose surrender is asked for should constitute an offense by our law, we by no means intend to say that the offense under the foreign law must be the same in point of denomination, or must fall within the same class or category, or be dealt with according to the same procedure, or be subject to the same punishment as it would be under our own. Any such requirement is calculated to create unnecessary difficulty, and may cause obstruction where extradition ought undoubtedly to take place. It being once ascertained that the facts proved constitute an offense coming within the principle of extradition, the particular form and character which the offense assumes must be left to the foreign law, this being the law which is alleged to have been broken, and by which, beyond all question, if the accused is surrendered, his guilt or innocence must be determined. The magistrate, therefore, should be authorized to grant extradition upon sufficient prima-facie proof before him of facts which constitute an extradition offense, although the description of the offense in the demand, or in the documents produced in support of it, or the facts therein stated, may not be sufficient to constitute the particular offense to which that description is appropriated by British law; in other words, the magistrate should look to the facts proved before him rather than to the form in which the case may be presented on the documents.
In this respect there can be no distinction between the case of a British subject, if surrendered, and that of a subject of the foreign state. The British subject, while within the foreign state, owes obedience to its law as though he had been one of its [Page 273] subjects, and as much amenable to that law for a violation of it as a natural-born subject would be.
VII. A question presents itself whether, if a person be surrendered in respect of one extradition offense, he should, when transferred to the country claiming him, be liable to be tried for another. Political and local offenses being excepted, we see no reason why he should not. So far as we are aware, the main ground hitherto put forward for objecting to such a course has been the apprehension that a foreign government, having obtained the surrender of a criminal on an ordinary charge, might put him on his trial for a political offense. If the offenses just referred to be excluded, there seems to be no other case in which it can be suggested that a foreign government would act disingenuously toward ours if it were to put the person surrendered on his trial in respect of a crime which was not the ground of extradition in the particular instance. If there be another accusation against him in respect of a crime which would properly be the subject of extradition, we see no reason why he should not be called upon to answer it. It may be discovered after the surrender that the party surrendered has committed some other offense deserving of punishment; or proofs, previously wanting, of such other offense may be brought to light. We see no reason why under such circumstances the offender should escape with impunity. If the circumstances under which he was given up were such as to call for his surrender, what possible interest, except in the case of the political offender, or the offender against a merely local law, can we have in what becomes of him afterward? We should not be warranted in assuming that he will be dealt with in the foreign country otherwise than according to justice and right. Again, what is it that we are supposed to be entitled to claim under such circumstances? It can only be that the party shall be set at large, or restored to this country, when, on the evidence which would be available on the second trial, his surrender might again be claimed from this or any other country bound by an extradition treaty, and, if claimed, must be conceded.
The case is no doubt possible, that a person whose surrender was asked for on an ordinary charge might be put on his trial for a political or local offense. But such a case is not likely to occur. In the first place, it being known that this country refuses to deliver up persons charged with such offenses, if a foreign government were to obtain the surrender of a prisoner on the pretense of trying him for an offense in respect of which extradition can be claimed, for the purpose of trying him for an offense in respect of which it cannot; or, having obtained his surrender in respect of one of the former class, should take the opportunity of proceeding against him on one of the latter, its conduct would be disingenuous and dishonest, and would give rise to well-founded and serious complaint on the part of the government of this country. But such a proceeding may easily be guarded against. It should be expressly stipulated in any treaties entered into that a person surrendered on a particular charge should not be tried for any other offense, unless of an extraditional character; and in all cases in which the surrender takes place otherwise than under treaty the surrender should be made on the same condition. As regards political offenders, such a case would not present itself without its being known that there had been political disturbances in the country claiming the surrender; nor, if the alleged offender were a notable person, without its being known that he had made himself obnoxious to the government claiming him.
It is true that, with regard to obscure individuals who might, if acquitted of the crime for which they are delivered up, run the risk of being tried, or detained without trial, on account of offenses against political or local laws, neither the government nor the magistrates in this country would be likely to know anything. The accused individual himself, however, cannot be ignorant that there is such a risk. It seems, therefore, desirable that the accused should have full opportunity to show, not only that there is not a sufficient case for surrendering him to be tried for the crime in respect of which his surrender is demanded, but also that it is intended, in case of his surrender, to try or arbitrarily punish him for some offense for which he could not be surrendered; or at least that there is a risk that, if he is surrendered, he may be tried, punished, or detained for such an offense.
There could, indeed, seldom be strict legal evidence such as would justify a magistrate, or a court of law on habeas corpus, in finding that there was such an intention; and an enactment that the accused person shall not be surrendered if such an intent be proved would, therefore, probably not be of much use, except for the purpose of satisfying the reasonable jealousy of our own people; but there seems no objection to such an enactment unless it be that it might offend the susceptibilities of foreign countries.
The real practical remedy seems to be that the accused should have a right to demand an inquiry; on which inquiry there should be no restriction on the kind of evidence to be received, except that imposed by common sense; and that if the result of that inquiry should be that in the opinion of the government a proper case has been made out, discretion should be given to the government in favor of the accused, either to refuse to deliver him up at all, or to require, before delivering him up, a specific [Page 274] engagement from the foreign government that if acquitted of the crime for which he is demanded, or when he has suffered the punishment of that crime, he shall be at liberty to quit the country to which he has been surrendered. Such an engagement would probably seldom be refused. It may safely be assumed that no foreign government would be so lost to a sense of its own honor and interest as to violate a pledge so given. If it were, the order in council enabling a surrender to that foreign government should at once be revoked.
If these or similar precautions are adopted, there seems no reason why the foreign government should, as a general rule, be required to engage not to try the person for any other extradition crime than the one in respect of which his surrender was obtained. It is obviously a serious objection to such a restriction that, if a person has been guilty of more than one extradition offense, either the foreign government must bring to this country evidence of every crime which may be charged against the accused, the delay and expense of which would be very great, or the offender would escape in respect of all other crimes committed by him save the one on which he was surrendered. Moreover, it may well happen that the evidence of the one crime does not come out till the trial of the other.
The proposal that, before putting the person surrendered upon trial for another extradition offense, the consent of the surrendering government should be required, seems objectionable, not only as occasioning expense and trouble to the prosecutors, but as entailing on the accused a detention in prison while the two governments are negotiating. If the prisoner should be ultimately acquitted, this might be a serious hardship. And its sole object seems to be to provide against a remote possibility of wrong, which, if the precautions above suggested are taken, would be sufficiently excluded.
VIII. The existing statutes do not contain any provisions respecting the procedure to be adopted in this country when application is about to be made to a foreign state for the surrender of an alleged criminal to Great Britain; and we learn from Sir James Ingham that the want of such provisions is sometimes a source of difficulty and inconvenience. It is the usual (and, in our opinion, the proper) course for a warrant for the arrest of the accused person to be applied for and granted upon a sworn information; which, although sufficient to justify the British magistrate in issuing the warrant, way not (even in those cases in which it is necessary or proper to proceed on ex-parte evidence) be deemed sufficient to authorize the surrender by the foreign state. We think it is desirable that in all cases the evidence in support of the charge should be made as complete as possible before the warrant is granted; but, for the purpose of supplying any accidental or unavoidable omissions in that evidence, we think the British magistrate should have power (which he is not now considered to possess) to receive and certify any supplementary depositions which may be offered to be sworn before him, and which the foreign jurisdiction may be willing to receive, after as well as before the issue of the warrant. We recommend that provision for this purpose as well as for regulation of the procedure before British magistrates in cases where extradition is to be obtained from another country, in accordance with the practice of which we have expressed our approval, should be made by law.
IX. A cognate subject, to which (though it may not come strictly within the scope of our commission) we think it right to advert, is that of the means of following, from one part of Her Majesty’s dominions into another, fugitive offenders, who have escaped from the jurisdiction within which their offenses were committed, and ought to be tried. No sufficient means for this purpose are now provided by law; and it is obviously desirable that this defect should be supplied. Inasmuch, however, as we are informed that this subject has recently been, and is still, under the careful consideration of Her Majesty’s government, we do not think it necessary to dwell upon it any further.
X. A valuable auxiliary in detecting crime and also in frustrating its purpose is, as is well known, to be found in the power of searching the premises of the accused, or other place to which he may be believed to have transferred stolen property or other indicia of crime. And it is frequently essential to the efficacy of such a search that it should be made contemporaneously with, or, indeed, sometimes prior to, the arrest of the alleged offender. In the exercise of his ordinary jurisdiction in respect of a crime committed in this country, a magistrate has authority, upon a sworn information, to issue a search-warrant at anytime, whether before, after, or at the time of issuing the warrant for the apprehension of the accused.
In the case of an extradition offense the power of the magistrate, as given by section 9 of the act of 1870, arises only “when the fugitive criminal is brought before him.” The effect of which is that in the interval between the apprehension of the accused and his being brought before the magistrate, ample opportunity is afforded to any friend or associate of the prisoner to remove stolen property, which it may be impossible afterwards to recover, or papers or other articles, which, like the stolen property, might afford material evidence of his guilt.
We are of opinion that this defect in the existing statute should be amended, and [Page 275] that the power of the magistrate in this particular should be put on the same footing in respect of an extradition offence as in respect of an offense committed in this country and coming within his ordinary jurisdiction.
XI. By the third section of the statute referred to, “a fugitive criminal shall not be surrendered until the expiration of 15 days from the date of his being committed to prison to await his surrender”; and by section 11, “if the police magistrate commits a fugitive prisoner to prison, he shall inform such criminal that he will not be surrendered until after the expiration of 15 days, and that he has a right to apply for a writ of habeas corpus.” We are informed by the chief magistrate that, while applications for extradition are numerous, applications for writs of habeas corpus in cases of extradition are rare, and that when information is thus given to the fugitive criminal, as required by the statute, he almost invariably desires that he may be sent off at once. Sir J. Ingham suggests, therefore, that where the fugitive criminal, having been duly informed of the provision in question, declines to avail himself of the opportunity intended to be given him of applying for a writ of habeas corpus with a view to his liberation, and desires to be surrendered at once, it should be competent to the magistrate to commit him, and to certify to the Secretary of State that such request has been made, and thereupon the Secretary of State should be enabled to surrender him forthwith. We concur in this suggestion. The only purpose of the statutory provision is to enable a prisoner to obtain the protection of the law, if entitled to it. If he desires to waive the right thus given him, the delay becomes useless to him and vexatious to those asking for his surrender.
XII. Foreign police authorities often make communications to the police authorities in this country by telegram. In this way it becomes known that a foreign warrant has been issued for the apprehension of a person accused of an extradition crime, who either is already in this country, or is expected to come by a ship then on its voyage. There is in such cases no reasonable doubt of the truth of the information thus sent by telegraph; but, as the law now stands, the magistrates and the police in this country cannot legally act until the foreign warrant and the evidence in support of it arrive here, and in the mean time the fugitive has the opportunity of escaping.
To remedy this a power to arrest and detain persons under such circumstances seems to be required.
We would therefore suggest that power should be given to a police magistrate (having reasonable grounds for believing that a person is accused of an extradition crime, and that a requisition for his surrender is about to be made) by his warrant to authorize any constable to arrest such person, and bring him before the magistrate, who should then have power to remand him for a reasonable time, or discharge him, as to him might seem just. To meet the cases, said not to be uncommon, where even the short delay occasioned by applying to a magistrate may be important, power might be given to the home secretary to select in each police district some of the superior police to be authorized to act in such cases. And constables of this class might be authorized, on reasonable grounds of suspicion that a person was a fugitive guilty of an extradition crime, to arrest him without warrant, and bring him forth with before a justice of the peace, who should have power, as to him might seem just, either to direct the prisoner to be brought at once before a police magistrate, or to remand him, or to discharge him.
Such a power would be useful, and, thus guarded, would not be likely to be abused.
XIII. There is in the law relating to extradition, as it at present exists, a defect, by which extradition is liable to be frustrated, and to which, therefore, we think it necessary to call attention. It is that in the existing statutes no provision is made for dealing with the case of a criminal, who, having been surrendered by one foreign state to another, maybe brought into British territory on his way from the one country to the other. A case has recently presented itself, which, though it did not occur on British territory, will fully illustrate what we mean. A man charged with having committed forgery in the United States was surrendered by the Peruvian Government to that of the United States. On his way to the latter country he had to be conveyed across the territory of Colombia. There being no extradition treaty between the Government of Colombia and that of the United States, the prisoner, who having committed no offense against the Colombian law was entitled by that law to his liberty, was set at large by the local authority. The same thing might, under the present law, happen, in this country, even though there were an existing treaty between Great Britain and the state to which the surrender had been made, unless, indeed, a fresh demand for the extradition of the criminal were made, and the evidence necessary to support it were forthcoming in this country, which very possibly might not be the case. If, for instance, to take a possible case, a man, surrendered by the French Government to that of Germany or Holland, were landed in this country, to be conveyed by land to a port on our eastern coast, to be thence shipped to his place of destination, the man would be entitled to be set free, unless a case sufficient to found a demand for extradition could at once be established here.
The same thing might happen if a ship, on which the prisoner had been embarked [Page 276] being either a British ship or a foreign passenger ship, came in the course of transit into our waters. If the vessel were a ship of war it would depend on how far our courts would be prepared to treat such ship as part of the territory of the nation to which she belonged, and, as such, exempt from the jurisdiction of our law.
We recommend that statutory provision should be made to meet such a case, should it occur. With this view we suggest that it should be made competent to any justice of the peace, on the application of any consul of the state to whose officer a prisoner has been surrendered, or of any officer having charge of him, and on production of any warrant or other documents showing that the prisoner has been surrendered on the charge of having committed an extradition offense, to issue a warrant authorizing his detention and transfer through and from British territory to the place to which it is desired to convey him. And, further, that it shall be a sufficient answer to an application for a writ of habeas corpus to show, in like manner, by the production of a warrant or other authentic document, that the prisoner has been surrendered in respect of an extradition offense.
We further recommend that endeavors should be made to obtain a corresponding provision in our own favor in treaties between this country and foreign states.
XIV. If our suggestions should be adopted, further legislation will be necessary.
It is desirable that this legislation should be complete in itself. The means provided by the existing acts for the fulfillment of engagements, entered into by this country in any existing treaties, must remain in force for that purpose, so long as those treaties continue. But extradition under future treaties, or the power, if it is thought expedient to give it, of surrendering to foreign governments without any treaty, should be regulated by an act complete in itself without reference to any previous legislation.
It may be assumed that the machinery for putting the act in force, so far as relates to extradition to foreign countries, will be the same in substance as that which is provided by the present acts. But, if the suggestions which we have made are adopted, many of the provisions of those acts (especially such as are contained in sections 2, 3, 4, 9, 11, and 19 of the act of 1870) will require material alteration.
We do not recommend any change in the principle of existing imperial legislation on this subject as regards the colonies and foregn possessions of the Crown, as already contained in the act of 1870.
- A. E. COCKBURN.
- SELBORNE.
- BLACKBURN.
- RUSSELL GURNEY.
- RICHARD BAGGALLAY.
- WM. BALIOL BRETT.
- ALFRED HY. THESIGER.
- JOHN ROSE.
- J. F. STEPHEN.
- W. V. HARCOURT.
- W. M. TORRENS (with the exception of Section VII, from which I feel compelled to dissent for the following reasons).
It is the interest of every civilized government to aid in the apprehension and expulsion of evil-doers, who merely claim its hospitality to escape punishment. But it is not for the honor or interest of the Government of England to be made, unawares, instrumental in the pursuit and capture of fugitives from the resentment of absolute or irresponsible rulers. That such exist we know, and that they desire on various pleas the rendition of those who have offended them, is not a matter of doubt; ostensibly on political or religious grounds a demand of surrender has long ceased to be made. The settled and acknowledged policy of our government on this head may almost be thought to obviate the need of further provision by the legislature against a claim which has grown obsolete. The statute of 1870 was designed to guard against a different and more insidious danger, namely, that of our authorities being made use of to deliver up fugitives who have become the objects of suspicion, espionage, or persecution by arbitrary power, upon the alleged breach of some ordinary law for the protection of property or life. Every facility of primary accusation was meant to be given in the case of a foreigner resident within the realm which the criminal law affords for rendering amenable a native-born subject of the Crown. The same proof prima facie was declared to be sufficient, while the just and obvious rule was declaratively enacted that the refugee should only be deported or detained in custody on the production of such evidence as would justify a magistrate in sending for trial any subject of the Queen for a like offense committed here. If the provisions of the act are [Page 277] in this respect deemed insufficient after seven years’ experience of their application, it will he the duty of Parliament to alter and amend them.
But their practical value would be put in jeopardy if the demand made by one government, and by one only in Christendom, were conceded, that they should be so far repealed that when an exile had been surrendered on presumptive proof of complicity in one out of a dozen common misdemeanors, he might, after acquittal on that charge, be kept in custody, with a view to be put upon his trial for some other offense or offenses of which not a shadow of proof had been offered to an English magistrate that he was possibly or probably guilty. Practically this might be misunderstood as an invitation to a foreign government to deprive its subjects of the right of asylum in England, which, time out of mind, all our neighbors have enjoyed, irrespective of creed, race, or local institutions.
Clauses 3 and 19 of the act of 1870 were designed to prevent possible injustice being done to an exile, against whom an accusation may be brought with proof prima facie sufficient to warrant his committal here, but whose guilt may not be established upon trial in the foreign country. Our executive government was forbidden by Parliament to give up any foreigner without security by law, or specific agreement, that were a new charge subsequently preferred against him he should again have the protection of the same just and merciful provisions which he had when first accused, and our government was reciprocally directed to forego all claim to detain and try an exile in England on a second charge after he had been duly acquitted on the first.
To repeal this provision would appear to be a waiver by statute of our primary jurisdiction in the matter.
Had we to deal with countries only whose jurisprudence rests upon what England deems the principles of social and political civilization, there would perhaps be little risk in the concession. Criminal justice, as our people understand it, and as our laws and courts interpret it, implies publicity of arraignment, confronting with the accuser, and the weighing of evidence by an irremovable judge, indifferent to the frown of power. It implies the verdict of a fair jury, a record open to legal scrutiny, and the fearless criticism of an unfettered press. In America, France, and other constitutional states, the hazard may be considered comparatively slight of any grave hardship arising from allowing a fugitive once surrendered to be twice or thrice indicted for different crimes.
But the law of 1870 was framed to meet other circumstances as well as these, and in the hope of establishing a uniform rule in our dealings with foreign states.
In lieu of the wise and just provision embodied in section III of the act of 1870 above referred to, it is proposed to give the accused an opportunity of volunteering such disclosures to the Secretary of State as may possibly lead to his exacting the pledge of restoration to a place of safety on acquittal. But this practically would reimpose on the minister of the Crown the invidious duty in exceptional cases from which on grounds of general policy Parliament in 1870 unanimously decided on relieving him.
In truth, the fear entertained by those who are jealous of any lessening of the present safeguards against unfair and oppressive extradition mainly rests upon the possibility of a person, when acquitted of one extradition offense, being detained in custody for an indefinite period on the imputation of one or more offenses, none of which may have in them any political or religious character.
Parliament cannot affect ignorance of the disparity of foreign laws and the repugnance to our own of the principles on which criminal justice is frequently administered under them. It is a matter of notoriety, not of argument, that the presumption of innocence which we regard as fundamental is not acknowledged in several of the greatest states of Europe; but, on the contrary, that the onus of disproof lies upon the accused; and that if he be not gifted by nature with coolness, self-possession, and a ready wit, or lucky in the possession of sufficient means to engage the services of an able advocate in meeting the imputations and insinuations of a procurer-imperial, he has little chance of escape, according to our notions of criminal justice. This method of dealing with such grave matters forms no part of the subject of inquiry by this commission; but I think we are bound to keep in remembrance practices so irreconcilable with our ideas of criminal jurisprudence, and to take care that no supposed analogy to our established forms of procedure should render the authority of the Crown subservient unintentionally to working out schemes and purposes which public opinion in England would not approve.
It is certain, for example, that within the last few years numbers of persons suspected of sympathy with disaffection to the absolute rule of the Czar have been summarily arrested and transported from the Grand Duchy of Warsaw to Siberia without any form of public trial; and that thousands of Poles have been banished in this manner since 1864—the practice is called transportation by administrative decree, and all that is necessary in such cases is the decision of a governor, or an order from the chief of the police at St. Petersburg.
Is it too much to say that if to-morrow an individual who had become obnoxious to the police, for any cause however vague or uncertain, should seek refuge in this [Page 278] country, and should be surrendered on a charge of embezzlement or fraudulent bankruptcy, of which he might be acquitted by the ordinary tribunal, his subsequent liberty would not be worth an hour’s purchase if our government had exacted no pledge that he should be restored to liberty before being subjected to a second accusation? In certain continental states, as is well known, many ecclesiastics are liable to be indicted for infraction of laws relating to the administration of trust property. The priest of a country parish, the head of a monastic institution, or the bishop of a diocese, has heretofore stood in the position of a corporation sole, and has exercised discretionary powers in the distribution of religious and charitable funds. For non-observance of recent enactments he is now liable to arrest, fine, and imprisonment; but, the matter being one of conscience, he may persist in evading the civil interdict by contrivance and strategem, and may sometimes be supposed to abet by counsel and encouragement the opposition widely maintained through the press and otherwise to the new legislation. If he should seek refuge in exile, ought an English secretary of state to be liable under treaty to be called on to give him up because the magistrate at Bow street had evidence before him of allegations that he had misused trust property by retaining or disbursing it in breach of municipal law, without a pledge from the foreign government that, if acquitted of the charge in the sense wherein alone one of our own people could be made amenable to English law, he should be replaced within the dominions of the Queen?
The definition of what constitutes a breach of political laws, that is to say, of laws, exceptionally enacted in consequence of social, ecclesiastical, or dynastic controversies, is beyond the reach of our executive or judicial authority. The attempt to draw the line of distinction has frequently been made, but has always failed; and to leave the question as a nest-egg of diplomatic complication did not seem dignified or prudent in 1870, when Parliament legislated on the subject. On all hands it was then agreed that, as far as possible, the invidious discretion of giving up, or refusing to give up, the fugitive subjects of foreign governments should be taken from the administration of the day and reposed in the judiciary. It is indeed worthy of note that no foreign government whatever has objected in principle to the stipulation against detention for trial upon a second charge. On behalf of the United States, Mr. Secretary Fish explicitly recognized its propriety and justice, and it was confessedly on wholly different grounds that the misunderstanding arose which has led to so much diplomatic correspondence. The susceptibilities of America were touched, not by a proposal that this stipulation should be made reciprocal by a new treaty with Great Britain, but at being told that the conditions of the Ashburton treaty of 1843 had been modified by an act of the United Parliament. It seems incredible that such a difficulty should not be capable of removal without the abnegation by our legislature of safeguards for international justice which only seven years ago were deliberately enacted.
As the misunderstanding with America turns wholly on the retrospective effect of the act of 1870, never contemplated by Parliament, yet not unnaturally repudiated as inadmissible by Congress, there need be no difficulty in passing an act of indemnity applicable to all past and present cases in which a surrender is made to the United States without a guarantee in the event of acquittal, with a view to a new treaty of extradition wherein an assurance against trial on a second charge shall be embodied.
While the commission has been sitting, another notable adhesion to the policy of 1870 has been given by the ratification of an amended extradition treaty on the part of France, specifically embodying the principle that a refugee acquitted on one accusation ought to be replaced within the confines of asylum before he is made amenable on any second charge.