The Chargé in Great Britain ( Atherton ) to the Secretary of State

No. 996

Sir: I have the honor to refer to the Department’s instruction No. 1734, March 15 [14], 1929 (File No. 211.41/137), relating to the Department’s conclusions and suggestions on the draft of an extradition treaty, which was duly forwarded to the Foreign Office under date of March 28, 1929, and to enclose a copy of a Foreign Office note in reply, containing certain specific observations in regard to the articles of the draft treaty.

I have [etc.]

Ray Atherton

The British Secretary of State for Foreign Affairs ( Henderson ) to the American Chargé ( Atherton )

No. T 4815/350/374

Sir: I have the honour to refer to your note of the 28th March 1929 (No. 2285) relative to the draft Extradition Treaty which formed the [Page 345] subject of Lord Cushendun’s note of November 17th, 1928. His Majesty’s Government in the United Kingdom have given careful consideration to the various points raised in your note, and I now beg leave to offer the following observations in regard to the articles of the draft treaty mentioned.

Article 3. The proviso in the first sentence of this article was inserted in the draft treaty in order to meet the requirements of the Extradition Acts, to which it is necessary that any treaty entered into by this country should conform. Under those Acts surrender can only take place for certain crimes specified by statute, and the list of crimes scheduled in the article is too wide for this purpose without the qualification contained in the proviso. It is however understood from your note that the proviso would be inappropriate, since there is no corresponding statutory list of extradition crimes in the United States, and as it is agreed that it is a fundamental principle of extradition that a country is under no obligation to surrender a fugitive unless he is charged with an act which is recognized as a crime in its own law, His Majesty’s Government in the United Kingdom concur in the view of the United States Government that the proviso should be omitted. For similar reasons the concluding paragraph of the article would also be deleted.
The omission of the proviso will however, as indicated above, necessitate a few consequential changes in the list of crimes in article 3, and the following revisions are accordingly suggested:—
  • Item 26. “Malicious injury to property, if such offence be indictable”. Besides indictable offences of malicious injury to property there are in this country summary offences where the injury is trivial, and the latter are not extraditable.
  • Item 27. “Piracy by the law of nations”.
  • Item 27a. “Revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas, against the authority of the master; wrongfully sinking or destroying a vessel at sea, or attempting to do so; assaults on board a ship on the high seas, with intent to do grievous bodily harm”. This definition follows the wording of article 1, item 9 of the existing Convention of July 12th, 1889.16
Article 3, Item 6. While the determination of the law is a matter for the Courts, His Majesty’s Government in the United Kingdom are advised that “indecent assault” is committed when one person indecently assaults another; it may be committed by a male person upon another male person or a female person. It is a much less serious offence than either (a) rape, which consists of having carnal knowledge of a woman without her consent (and is usually accompanied with [Page 346] violence), or (b) unlawful carnal knowledge of a girl of tender years to which offence consent is no defence.
Article 3, Item 10. The term “Procuration” in the draft treaty is intended to refer to such offences as those enumerated in the first and second articles of the International Convention for the Suppression of the White Slave Traffic, concluded at Paris on May 4th, 1910.17 From the standpoint of English law the expression “Procuration” appears to be a sufficient description.
Article 3, Item 12. “Maliciously wounding or inflicting grievous bodily harm”, and Item 13 “Assault occasioning actual bodily harm” relate to offences which are very similar in character, and the latter might be omitted. The former item will seemingly include all cases in which extradition will be desired.
His Majesty’s Government in the United Kingdom regret that they are unable to accede to the proposal that “Wilful desertion or wilful non-support of minor or dependent children” should be added to the list of offences. Such acts do not necessarily constitute any offence in English law, and are not acts in respect of which they are empowered to grant extradition.
Article 5. This article appears to embody a reasonable principle that a man should not be surrendered if he would be exempt from prosecution in the territory in which he is found by lapse of time, and the principle of the article seems to be accepted in article 5 of the treaty between the United States and Poland.18 His Majesty’s Government would in the circumstances be glad if the United States Government would be good enough to accord further consideration to the proposal.
Article 6 is founded upon British law, and His Majesty’s Government regret that they would be unable to accept the additional paragraph desired by the United States Government. The determination whether or not a particular crime is a crime of a political character is ordinarily a matter for the Courts of this country, and it would not be possible in a treaty concluded by this country to attempt an explanation of the expression. Further should the Court consider the explanation to be contrary to the Statute, the Court would feel itself obliged to give effect to the Statute rather than the treaty, and an awkward position would then arise. It may be remarked in this connection that the meaning of a crime of a political character in the Extradition Acts has been considered by the English Courts in the cases of Castioni (1891 1 QBD 143) and Meunier (1894 2 KB 415), the head note to the latter case stating that “to constitute a political offence there must be two or more parties in the State, each seeking [Page 347] to impose the government of their own choice on the other, which was not the case with regard to anarchist crimes”.
Articles 8, 9, 10 and 12 in the draft treaty substantially set out the requirements of the Extradition Acts and the current practice. Articles 8 and 9 refer to the formal application for extradition, while article 10 sets out the procedure in urgent cases in which the arrest of the fugitive is sought before the formal application supported by the usual documents can be made. His Majesty’s Government, while of opinion that their inclusion in the draft treaty would be convenient for reference purposes, do not however wish to press for their insertion, and are prepared to accept the proposal of the United States Government. They would however suggest that the proposed article should be worded as follows:—”The extradition of fugitive criminals under the provisions of this treaty shall be carried out in the United States and in the territory of His Britannic Majesty, respectively, in conformity with the laws regulating extradition for the time being in force in the territory from which the surrender of the fugitive criminal is claimed”.
In Article 11 of the draft treaty the words “and no criminal shall be surrendered until after the expiration of fifteen days from the date of his committal to prison to await the warrant for his surrender” are, as the United States Government presume, a requirement of the Extradition Acts. The provision does not appear however in the existing treaties, and as it is incorporated in the alternative text proposed by the United States Government for articles 8–10 and 12, His Majesty’s Government agree that it is preferable, on the ground mentioned in your note to omit this provision.
Article 16. His Majesty’s Government regret that the United States Government feel unable to accept the proposal in this article regarding the incidence of expenses. They have carefully considered the observations made in your note, and in the circumstances they desire to recommend that the existing arrangements should be continued and that for article 16 in the draft treaty there should be substituted the following provision:—”All expenses connected with the extradition shall be borne by the High Contracting Party making the application”.
With regard to the formula proposed in your note for insertion in article 2, I would observe that section 25 of the Extradition Act of 1870 states that “For the purposes of this Act every Colony, Dependency, and constituent part of a foreign State, and every vessel of that State, shall (except where expressly mentioned as distinct in this Act) be deemed to be within the jurisdiction of, and to be part of such foreign State”. In view of the terms of the act, His Majesty’s Government feel some hesitation with regard to the use in the treaty of [Page 348] the expression “territories in the occupancy or under the control of the United States” and therefore suggest that the words “or in its occupancy and under its control, during such occupancy and control” should be replaced by the phrase “including its dependencies and all other territories under its exclusive administration or control”.
I have the honour accordingly to request that you will be good enough to submit these observations to the United States Government and acquaint me in due course with their further views in the matter. For convenience of reference a revised print of the draft treaty has been prepared of which I enclose copies herewith.19

I have [etc.]

(For the Secretary of State)
G. R. Warner
  1. Malloy, Treaties, 1776–1909, vol. i, p. 740.
  2. British and Foreign State Papers, vol. ciii, p. 244.
  3. Signed at Warsaw, November 22, 1927, Foreign Relations, 1927, vol. iii, p. 624.
  4. Not printed.