No. 2.
Mr. Phelps to Mr. Bayard.

No. 307.]

Sir: I have the honor to transmit herewith the convention signed by me on behalf of the United States, and by the Right Honorable the Earl of Rosebery, minister of foreign affairs, on behalf of Her Majesty’s Government, extending the provisions of the tenth Article of the Treaty [Page 1741] of August 9, 1842, between the United States and Great Britain, relative to the extradttion of persons charged with crime.

I advised you by telegram of the 25th instant of the execution of this convention.

It conforms in all substantial particulars so nearly to the form heretofore prepared by me, and submitted to the Department of State for consideration, and of which your approval was expressed, that I have not deemed it necessary or desirable to incur the delay, at this late period in the session of Congress, of sending it to you for further examination before signing. And it has been impossible for me, under the existing condition of public business here and the long discussion upon minor details that has taken place, to bring the matter to an earlier conclusion, though I have made every exertion to that end.

The convention is so short, and its terms will, I hope, be found so perspicuous, that but little explanation seems to me requisite; though to overcome the scruples of some of the officers of Her Majesty’s Government, I have consented to add two or three clauses, which, though quite unobjectionable, are, in my judgment, unnecessary. But as the convention as finally concluded is in all its material provisions in accordance with my own views as approved by you, I regarded those concessions as judicious.

I add a few suggestions on the various clauses:

(1) It will be observed that the provisions for extradition are extended to persons convicted of the crimes specified in the treaty, as well as to those charged before trial with the commission of them. This seems to me a very desirable addition. If those accused of crime should be surrendered in order to be tried and punished, much more should those actually convicted of the same crimes, but who have escaped punishment by flight, be sent back to undergo the sentence of the law.

(2) But four additional crimes are added by this convention to the, seven specified in the treaty of 1842. It is not intended to be asserted that there may not be other offenses proper to be included in an extradition treaty. These are the principal and most flagrant ones. A largo class of crimes, justly punishable by law, are, in my judgment, not only beneath the dignity of a treaty between nations, but having different definitions and degrees under different statutes, are likely, if embraced in such a treaty, to be fruitful of controversy in its practical application The attempt to enlarge the list of crimes encounters such a variety of conflicting claims on the one side and the other as to render discussion almost endless and agreement extremely difficult. On my accession, to office, I found pending between the two Governments a negotiation for a new extradition treaty, which had been going on for nine years without much approximation toward a result. The discussion had been principally in regard to minor offenses and details, a procedure unnecessary, in my judgment, to be included in a treaty, and likely to embarrass its operation. Meanwhile the constant escape of criminals in flagrant cases, in respect to which there could be no dispute, had become a scandal to both countries. I was very glad, therefore, to obtain your approval to the suggestion that these cases be at once provided for by a simple extension of the existing treaty, leaving for after-consideration the question whether a more elaborate one is desirable.

(3) The restriction of the provisions of the convention, so far as the additional offenses are concerned, to those which may be committed after the convention comes into force is one which is usual in treaties of this character, and whether important or not can not, I think, be objectionable.

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(4) The provision that no surrender shall be made for a political of fense is unnecessary, because such is already the established and universal rule, to which all extradition treaties are regarded as subject. But its insertion can do no harm, and the omission of it might excite comment.

(5) The clause precluding the trial of a surrendered fugitive for any offence committed prior to his surrender, except that established by the facts on which his surrender was granted, until he shall have had a reasonable opportunity for return has already received your assent. If anything needs to be said in its support, I refer to the elaborate discussion of the subject contained in my dispatch, No. 143, under date of November 23, 1885. I regard this clause not only as right in itself, and as in conformity with the true principles of international law on the subject, but as specially desirable to the United States.

It is further to be remarked that, without the insertion of it or statute enactment to the same effect, no extradition treaty whatever could be made with Great Britain, because the act of Parliament of 1870 directly prohibits the making of such a treaty with any nation unless provision is made by that nation against the trial of a surrendered person for a crime other than that on which his extradition was demanded. I do not think a repeal of this act could be obtained from the British Parliament. It certainly could not at the present time. If, therefore, we were to persist upon the unnecessary, and in my judgment untenable and undesirable, proposition that a man should be extradited for one offense in order to try him for another, we should be unable to establish with Great Britain any extradition arrangements at all.

And I add that, in my opinion, if the objection arising upon the act of Parliament should be seriously pressed in the courts of Great Britain upon a demand for extradition under our existing treaty as it stands, without this convention, and in the absence of any provision such as that contained in this clause, a very serious question would arise whether any such extradition could be granted.

(6) Article VII is in my estimation quite unnecessary, but altogether harmless. No extradition can ever take place, whatever the stipulations of a treaty may be, except under and in conformity to existing legislation for carrying it into effect in the country where the surrender is sought. Omission to provide such legislation, or any statute restrictions inconsistent with the provisions of the treaty, would amount simply to a refusal to carry out the treaty, or to a violation of its terms. This is not to be anticipated in a contract between sovereign powers. But should it unhappily take place the remedy is found in the provisions of this convention copied from the treaty of 1842, by which either party can terminate the treaty by simply giving notice to that effect.

This clause, therefore, only formulates in terms the rule of law that would equally and unavoidably apply, though it were not expressed in the convention.

It is expressly understood on both sides that the adoption of this convention shall not stand in the way of the negotiation of a more elaborate treaty upon the subject, which shall supersede both this convention and the tenth article of the treaty of 1842, if such treaty shall, upon further consideration, be deemed advisable. My own judgment is decidedly against any such attempt, for reasons heretofore clearly presented to you. I think that the treaty of 1842, supplemented by this convention, and by the system of judicial construction and procedure which has grown up under it in an administration of forty-four years, forms an extradition arrangement that is not likely to be improved by attempting to [Page 1743] recast it. But should your opinion be otherwise I shall address my best efforts to obtaining such other or further treaty stipulations as you may deem desirable.

I have, etc.,

E. J. Phelps.
[Inclosure in No. 307.]

Extradition treaty between the United States and Great Britain.

Whereas by the 10th article of the treaty concluded between the United States of America and Her Britannic Majesty on the 9th day of August, 1842, provision is made for the extradition of persons charged with certain crimes;

And whereas it is now desired by the high contracting parties that the provisions of the said article should embrace certain crimes not therein specified, and should extend to fugitives convicted of the crimes specified in the said article and in this convention;

The said high contracting parties have appointed as their plenipotentiaries to conclude a convention for this purpose, namely: The President of the United States of America, Edward John Phelps, envoy extraordinary and minister plenipotentiary of the United States to the Court of St. James, etc., etc.; and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, the Right Honorable Archibald Philip, Earl of Rosebery, Her Majesty’s principal secretary of state for foreign affairs, etc., etc., who, after having communicated to each other their respective full powers, found in good and due form, have agreed upon the following articles:

Article I.

The provisions of the 10th article of said treaty shall be and are hereby extended so as to apply to and comprehend the following additional crimes not mentioned in the said article, namely: (1) Manslaughter; (2) burglary; (3) embezzlement or larceny of the value of 50 dollars, or £10, and upwards; (4) malicious injuries to property whereby the life of any person shall be endangered, if such injuries constitute a crime according to the laws of both the high contracting parties; and the provisions of the said article shall have the same effect with respect to the extradition of persons charged with any of the said crimes as if the same had been originally named and specified in the said article.

Article II.

The provisions of the 10th article of the said treaty and of this convention shall apply to persons convicted of the crimes therein respectively named and specified whose sentence therefor shall not have been executed.

In the case of a fugitive criminal alleged to have been convicted of the crime for which his surrender is asked, a copy of the record of the conviction and of the sentence of the court before which such conviction took place, duly authenticated, shall be produced, together with evidence proving that the prisoner is the person to whom such sentence refers.

Article III.

This convention shall not apply to any of the crimes herein named and specified which shall have been committed, or to any conviction which shall have been pronounced, prior to the date when the convention shall come into force.

Article IV.

No fugitive criminal shall be surrendered under the provisions of the said treaty, or of this convention, if the crime in respect of which his surrender is demanded be one of a political character, or if he prove to the competent authority that the requisition for his surrender has in fact been made with the view to try or punish him for a crime of a political character.

Article V.

A fugitive criminal surrendered to either of the high contracting parties under the provisions of the said treaty or of this convention shall not, until he has had an opportunity of returning to the state by which he has been surrendered, be detained or tried for any crime committed prior to his surrender other than the extradition crime proved by the facts on which his surrender was granted.

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Article VI.

The extradition of fugitives under the provisions of the said treaty and of the present convention shall be carried out in the United States and in Her Majesty’s dominions, respectively, subject to, and in conformity with, the laws regulating extradition for the time being in force in the surrendering state.

Article VII.

This convention shall be ratified, and the ratifications shall be exchanged at London as soon as possible. It shall come into force ten days after its publication, in conformity with the forms prescribed by the laws of the high contracting parties, and shall continue in force until one or the other of the high contracting parties shall signify its wish to terminate it, and no longer.

In witness whereof the undersigned have signed the same and have affixed thereto their seals.

Edward John Phelps