No. 110.
Mr. Fish to Mr. Hoffman.
Washington, March 31, 1876.
Sir: Referring to previous correspondence in reference to the extradition of Winslow, in custody in London, I have now to acknowledge the receipt of your No. 39, under date of March 10, inclosing a note addressed to you by Lord Derby, of March 8th, and your reply of the same day.
With General Schenck’s No. 884 was inclosed a note from Lord Derby, dated February 29th, in which it was stated that Her Majesty’s secretary of state for the home department had drawn attention to subsection two of the third section of the British extradition act of 1870, and feared that the claim by this Government of the right to try Lawrence (who had been recently surrendered) for crimes other than that for which he had been extradited amounts to a denial that any such law as is referred to in the British act exists, and the disclaimer of this Government of the existence of any implied understanding in respect to trials for crimes other than extradition crimes, together with the interpretation put upon the act of Congress of August 12, 1842, (which is doubtless an error for 1848,) preclude any longer the belief in the existence of an effective arrangement which Her Majesty’s government had previously supposed to be practically in force, and it was added that the secretary of the home department was compelled to state that if he were correct in considering that no such law exists, he would have no power, in the absence of an arrangement, to order the extradition of Winslow, even although proper proceedings had been taken for that purpose.
Lord Derby called General Schenck’s attention to the intimation [Page 211] which he had received from the home department, and requested that the matter be brought to the knowledge of this Government.
It is to be remarked, however, that in this note the foreign office, as distinguished from the home office, expressed no opinion on the question involved, but confined itself to requesting that the views of the home office might be communicated to this Government.
A few days later, however, on the 8th of March, Lord Derby assumes the more advanced position previously occupied only by the home department, and writes as follows: “Her Majesty’s government do not feel themselves justified in authorizing the surrender of Winslow until they shall have received the assurance of your Government that this person shall not, until he has been restored, or had an opportunity of returning to Her Majesty’s dominions, be detained or tried in the United States for any offense committed prior to his surrender other than the extradition crimes proved by the facts on which the surrender would be grounded,” and requesting that this decision be communicated to this Government.
To his note you made reply under date March 8, referring to the general practice for many years under the treaty, and calling attention to the construction given to the twenty-seventh section of the act of 1870 in the case of Bouvier.
No further correspondence has reached this Government, and the matter rests upon this note of Lord Derby and your reply.
The reasons given by Lord Derby for the course intimated in his note arise, as he states, from what had taken place in this country in the Lawrence case, and the positive terms of section three, subsection two, of the British extradition act of 1870.
Moreover, it has been stated that the home office had even gone further, and expressed the opinion that, not only had some implied understanding been reached as to the particular crime for which Lawrence should be tried, but that it would be in violation of the law of the United States, and of the general laws of extradition of all countries, to try any prisoner for any other crime than the particular extradition offense for which he had been surrendered.
With regard to any such understanding, either expressed or implied by any authorized declaration or engagement of this Government, no evidence is adduced; none can be adduced. This Government asked the surrender of Lawrence, precisely as it has asked the surrender of all other fugitives who have been delivered by Great Britain under the treaty of 1842, complying on its part with the requirements of the treaty; and neither by expression nor by implication entering into any “arrangement,” but simply requiring the fugitive to be “delivered up to justice.” It furnished such evidence of criminality as according to the laws of Great Britain, where the fugitive was, found, would have justified his apprehension and commitment for trial if the crime or offense had been there committed.
Great Britain recognized the compliance by this Government with all that the treaty required, and delivered the fugitive up to justice.
The allusion made by the home office to the case of Lawrence needs possibly a passing remark.
Charles L. Lawrence is charged with a series of forgeries whereby the Government of the United States claims to have been defrauded to an amount not far short of two millions of dollars on custom-house entries. He is supposed to have numerous and influential confederates, both in this country and in England, who are suspected of having [Page 212] shared in the spoils resulting from these alleged frauds upon this Government.
A large number of indictments have been found against Lawrence, and proceedings either civil or criminal are either pending or imminent against supposed accomplices. It is supposed that prosecution of these cases might possibly disclose names on either side of the Atlantic, in connection with the alleged frauds, not yet brought before the public.
In the spring of 1875 Lawrence fled and escaped to Europe, and was arrested, under the assumed name of Gordon, at Queenstown, on a requisition for his surrender under the treaty. There were proved (as I am informed) before Sir Thomas Henry, in London, twelve or thirteen distinct charges of forgery, each on papers connected with a different invoice of goods. The representatives of this Government supposed the extradition was made on all the charges; but the letter or report of Sir Thomas Henry to the British home office led to the issue of a warrant of surrender of Lawrence on the single charge of forging a bond and affidavit, on which warrant the keeper of the jail delivered Lawrence to the agent appointed by the President to receive him; the terms of the warrant were not known to any agent or officer of this Government (as is represented to me) until long after Lawrence’s return to the United States. His counsel and friends appear to have been apprised of the fact that, although proof was presented on some twelve or thirteen charges of forgery, the warrant of surrender seems to be confined to the forging a bond and affidavit. Up to this date Lawrence has been arraigned only upon one indictment, based on the forgery of the bond and affidavit mentioned in Sir Thomas Henry’s report to the home office, and he has not been arraigned for any offense other than the extradition crimes proved by the facts in evidence before Sir Thomas Henry, and on which his surrender was based.
Although not arraigned on any other indictment than for the forgery for which he was extradited, the British home office has raised the question that he may possibly be tried upon other charges and for other crimes.
It seems, therefore, that the home office of Great Britain undertakes to decide what is the law of the United States, as well as of Great Britain, and assumes that the law of the United States, as well as general law of extradition and the extradition act of Great Britain, prevents the trial of a criminal surrendered under the treaty of 1842 for any offense other than the particular offense for which he was extradited; and the position which it takes involves the assumption that, in demanding an extradition under the treaty, the United States is bound by the provisions of the act of 1870, whether in conflict with the treaty or not, and it claims to have “supposed” that an “effective arrangement was in force” that no criminal so surrendered should be tried for any other than the particular extradition offense; on the faith of which arrangement it is claimed that surrenders have heretofore been made, and without which it is now said that a surrender would not be possible under an English act; but, as already said, nothing is adduced in support of the belief of the existence of such supposed arrangement.
These positions are so different from the understanding of this Government, and so opposed to the views which it was supposed were entertained by Great Britain, and which have been recorded in parliamentary papers, which have been asserted in diplomatic correspondence, and been recognized in judicial decisions in that as in this country, and set forth by writers on extradition law, that I learn from Lord Derby’s [Page 213] note, with surprise equal to my regret, that they appear to be supported by the foreign office.
The act of August 12, 1848, reproduced in the Revised Statutes, (sections 5270 to 5276,) referred to in the correspondence, does not affect or limit the rights of the two governments on the question.
This act is simply a general act for carrying into effect treaties of extradition. It provides the machinery, and prescribes the general mode of procedure, but does not assume to determine the rights of the United States, or of any other state, which are governed wholly by the particular provisions of the several treaties, nor to limit or construe any particular treaty.
In some few treaties between the United States and foreign countries provisions exist that the criminal shall not be tried for offenses committed prior to extradition, other than the extradition crime, and in others no such provision is included.
Again, under some treaties, the citizens or subjects of the contracting powers are reciprocally exempt from being surrendered, while others contain no such exception. The United States act of 1848 is equally applicable to all these differing treaties. If the surrendered fugitive is to find immunity from trial for other than the offense named in the warrant of extradition, he must find such immunity guaranteed to him by the terms of the treaty, not in the act of Congress. The treaties which contain the immunity from trial for other offenses have been celebrated since the date of the act of 1848.
At that date the United States had treaties of extradition only with Great Britain and with France, neither of which contained the limitation referred to.
The terms of the respective treaties alone define or can limit the rights of the contracting parties.
The construction of the treaty between the United States and Great Britain, by the two governments, and their practice in its enforcement for many years were in entire harmony. In each country surrendered fugitives have been tried for other offenses than those for which they had been delivered the rule having been that, where the criminal was reclaimed in good faith, and the proceeding was not an excuse or pretense to bring him within the jurisdiction of the court, it was no violation of the treaty, or of good faith, to proceed against him on other charges than the particular one on which he had been surrendered. The judicial decisions of both countries affirm this rule. It was so held in a case of interstate extradition by Judge Nelson, in Williams vs. Bacon, 10 Wendell, 636, and the same principle was laid down by the court of appeals of New York, in a late case of Adriance vs. Lagrave, who had been delivered up under the treaty with France. In United States vs. Caldwell, (8 Blatchford Cir. Ct. Rp., 131,) Caldwell, after extradition from Canada for forgery in 1871, was indicted for bribing an officer; and the plea was entered that the prisoner was brought within the jurisdiction of the court upon a charge of forgery, under the treaty, and that the offense specified in the indictment was not mentioned in the treaty. A demurrer being interposed, the court decided the prisoner had been extradited in good faith, charged with the commission of a crime, and must be tried.
In the case of Burley, extradited from Canada on a charge of robbery, the prisoner was tried on assault with intent to kill.
In the case of Heilbronn, who was extradited from this country for forgery, and tried in Great Britain for larceny, the facts, as stated by the solicitor-general of Great Britain who had charge of the proceedings, and who was examined before the late British commission on the [Page 214] extradition question, were, that the prisoner being extradited for forgery, was acquitted, and was thereupon tried and convicted for larceny, an offense for which he could not have been surrendered, not being enumerated in the list of crimes mentioned in the treaty.
In Canada there is the same current of authority.
In the case of Von Earnam, (Upper Canada Reports, 4 C., p. 288,) the prisoner was surrendered by the United States to Canada upon the charge of forgery, and application was made for release on bail on the ground that the offense was, at most, the obtaining of money under false pretenses and not within the treaty. Macauley, C. J., said, in denying the motion, that he was disposed to regard the offense as forgery, but even if the offense were only false pretenses, after “being in custody, he is liable to be prosecuted for any offense which the facts may support.”
In Paxton’s case, (10 Lower Canada Jurist, 212, 11, 352,) the prisoner was charged with uttering a forged promissory note. He pleaded that he had been extradited upon the charge of forgery, and could not be tried for uttering forged paper, or for any other than the extradition offense. The court decided that the trial should proceed. The prisoner thereupon protested against being called upon to plead to any other charge than that for which he was extradited, but he was tried, found guilty, and the conviction affirmed on appeal.
In addition to the foregoing, Judge Benedict, in his opinion in Lawrence’s case, delivered within a few days past, entirely coincides in these views, and the Solicitor-General of the United States, in his opinion in Lawrence’s case, dated July 16, 1875, reaches the same conclusions.
An examination of the report of the select committee on extradition of the House of Commons, which sat in 1868, under whose superintendence the extradition law of 1870 was framed, and which was composed of some of the most distinguished public men of Great Britain, among whom were the solicitor-general, Mr. Mill, Mr. Forster, Sir Robert Collier, and Mr. Bouverie, shows that the law of the United States, and the practice in regard to extradition, were perfectly well understood, and they are distinctly referred to on several occasions.
Mr. Hammond, now Lord Hammond, for many years under secretary of state, in speaking of Burley’s case, stated, that as it was suggested that the prisoner, who had been surrendered on a charge of robbery, was about to be tried for piracy, the matter had been referred to the law-officers of the Crown, and that it was held that if the United States put him bona-fide on his trial for the offense for which he was extradited, it would be difficult to question their right to try him for piracy, or any other offense of which he might be accused, whether such offense was or was not a ground of extradition, or even within the treaty; and added, “We admit in this country that if a man is bona-fide tried for an offense for which he was given up, there is nothing to prevent his being subsequently tried for another offense, either antecedently committed or not.” (Answer 1036.)
Mr. Mullens, an eminent member of the bar, who was counsel in the Lawrence case, in reply to a question of Sir Robert Collier, said that, in his opinion, a surrendered criminal ought to be tried for an offense other than the extradition offense arising from the same facts; and Mr. Forster, (question 1214,) considering the propriety of the proposed stipulation, that a person should be tried for no offense other than the extradition offense, said:
The Americans do not make that stipulation, or else you would not have been able to try Heilbronn for another offense. To which Mr. Mullens responded: “No; there is no stipulation of that kind in the case of America.”
Mr. Mill thereupon said, (question 1216:)
“As I understand it, the treaty with America would not prevent our trying a man for a different offense from that for which he had been given up.” To which Mr. Mullens replied: “It would not; there is no stipulation that he shall not be tried for any other offense.” Then follows question 1217, “Would you wish to extend that state of things to other countries?” and the reply, “With regard to America, I have never found any difficulty about it,” &c.
So far as can be ascertained there was absolutely no dissent at any time from these views as to the law and practice under the treaty, and the only question seemed to be whether it was wise to attempt to change them.
Mr. Clark, (an eminent British authority,) in his Treatise on Extradition, says:
It is quite clear that neither the treaty nor the law of the United States contains the provisions of the extradition act of 1870.
It would appear, therefore, by the judicial decisions, by the practice of both governments, and by the understanding of the persons most familiar with proceedings in such cases, and the most competent to judge, that where a criminal has been in good faith extradited for an offense within the treaty, there is no agreement, express or implied, that he may not also be tried for another offense of which he is charged, although not an extradition offense. He is, in fact, (in accordance with the language of the treaty,) “delivered up to justice;” and in the absence of any limitation by treaty, to “justice” generally; each independent state being the judge of its own administration of justice. Surely, Great Britain will not allow the legislature of another state to prescribe or to limit the cases, or the manner in which justice is to be administered in her courts, and she will not expect the United States to be less tenacious of its independence in this regard.
Now, for the first time since the signing of the treaty of 1842, Great Britain raises, the question of her right to demand from the United States, as a condition of the execution by Great Britain of her engagement to surrender a fugitive criminal charged with a series of stupendous forgeries, a stipulation or agreement not provided for in the treaty, but asked on the ground that an act of Parliament, passed some twenty-eight years after the treaty had been in force, prescribes it as one of the rules or conditions which should apply to arrangements for extradition, when made with a foreign state.
This involves the question whether one of the parties to a treaty can change and alter its terms or construction or attach new conditions to its execution without the assent of the other—whether an act of the Parliament of Great Britain, passed in the year 1870, can change the spirit or terms of a treaty with the United States of nearly thirty years’ anterior date, or can attach a new condition, to be demanded of the United States before compliance by Her Majesty’s government with the terms of the treaty, as they have been shown to have been uniformly understood and executed by both governments for the third of a century.
As this Government does not recognize any efficacy in a British statute to alter or modify or to attach new conditions to the executory parts of a previously-existing treaty between the United States and Great Britain, I do not feel called upon to examine particularly the provision of the law of 1870. But inasmuch as Great Britain seeks to impose the provisions of that act upon, the United States in the execution of a treaty of many years’ anterior date, I do not fail to observe that, while by the [Page 216] act Great Britain assumes to require that no surrendered fugitive shall be tried in the country which demands his extradition for “any offense other than the extradition crime,” (in the singular,) proved by the facts on which the surrender is grounded, she reserves to herself the right to try the fugitive surrendered to her for such crimes (in the plural) as may be proved by the facts on which the surrender is grounded.
This does not seem to be wholly reciprocal, and if the United States were disposed to enter into a treaty under this act, it might expect some greater equality of right than a cursory examination of this provision in the act seems to provide.
It is quite well known that after the passage of the act of 1870 an effort was made to enter into a treaty with Great Britain which should enlarge the number of extradition offenses, and otherwise extend the provisions of the existing treaty.
At the outset it was apparent that the act of 1870 was not an act to carry into effect treaties or conventions for extradition, as is the United States act of 1848, but one providing a system to which all subsequent treaties of extradition must be adapted, and which could be applied to enforce treaties or arrangements made subject to its provisions.
This Government was unable to agree to any arrangement based on the provisions of the act of 1870, and in a note addressed to Sir Edward Thornton, the British minister, under date of January 27, 1871, he was informed that “this Government understands the twenty-seventh section of the extradition act of 1870 as giving continued effect to the existing engagements for the surrender of criminals. Imperfect as they are, in view of the long conterminous frontier between British North America and the United States, we must be content to suffer the inconvenience, until Parliament shall put it in the power of Her Majesty’s government to propose a more comprehensive and acceptable arrangement.”
The British government was thus distinctly and formally advised of the position and of the views of the United States, and no exception thereto has been expressed.
A further effort to effect a treaty was made in 1873, after the passage by the British Parliament of an act amending the act of 1870, which resulted in failure, for precisely similar reasons.
This failure to negotiate a new treaty arose solely because the United States could not accept as part of it some of the provisions of the act of 1870, and preferred to go on under the treaty of 1842, as theretofore construed, and practically carried into effect by each government and thus we have proceeded up to the present time.
In support of the construction which this Government in 1871, in the note to Sir Edward Thornton above referred to, gave to the twenty-seventh section of the extradition act, it appears that when the Court of Queen’s Bench was called to pass upon the very question, in the case of Bouvier, 27 Law Times, N. S., 844, the attorney-general stated that the intention had been to make a general act, which should apply to all oases except where there was anything inconsistent with the treaties referred to. So far as the point was passed on, the lord chief-justice expressed the opinion that it was the intention, while getting rid of the statutes by which the former treaties were carried out, at the same time to save those treaties in their full integrity and force, and that the result had been accomplished. One of the other justices thought the question somewhat doubtful, and the third agreed with the chief-justice.
The Solicitor-General of the United States, in his opinion in Lawrence’s case, given in August of last year, reached the same conclusion, that the treaty was not affected by the act.
[Page 217]It cannot readily be believed that Parliament intended by the act of 1870 to claim the right to alter treaties in existence without notice to the other government, or to impose new conditions upon foreign governments seeking extraditions under treaties in existence prior to that act.
The United States has declined to become subject to the British act of 1870, and with knowledge of this the government of Great Britain has continued constantly to ask and obtain extraditions under the treaty of 1842, and since the refusal of the United States to negotiate a new treaty under the provisions of that act.
Since the passage of the act of 1870 Great Britain has obtained from this Government some thirteen warrants of extradition, and has instituted a much larger number of proceedings to obtain extradition. In no instance has Great Britain thought it necessary to tender any such stipulation as she now asks from the United States, or to present her requests for extradition in any way different from that in which they were presented prior to 1870. The United States in the same time have instituted numerous proceedings, and at this moment have three criminals in London in custody upon charges of forgery, whose extradition this Government is seeking in the usual manner provided by the treaty.
During this period no intimation has reached this Government that the treaty of 1842 was not in full force, or that the act of 1870 was claimed to limit its operation, or to impose upon this Government the necessity either of changing its laws or of giving stipulations not known to the provisions of the treaty, and not heretofore suggested, nor has any representation been made to this Government, by that of Great Britain, on account of any proceedings taken in the case of Lawrence, mentioned in the opinion attributed to the home office, in the note of Lord Derby to General Schenck, before referred to.
But now, with three important cases pending in London at the present time for extradition, in one of which, at least, all the formalities have been complied with, we are informed in substance that it had been supposed up to the present time by the British home office that our law as to trials for other than extradition offenses was in agreement with the law of 1870; but finding it to be otherwise, we are confronted with the requirement of a stipulation in order to obtain what is guaranteed by the treaty of 1842, whereby the United States must recognize the right of the British Parliament, by statute, to change existing executory treaties, and to impose upon this Government conditions and stipulations to which it had not given its assent.
As relates to the particular case of the fugitive Winslow, there is not, so far as I am aware, any intention of trying him for any offenses other than those on which indictments were transmitted, and for which his surrender was demanded; but the United States will give no stipulation of which the treaty does not authorize the demand.
As the stipulation or condition is demanded by Great Britain as a right, the right of the demand must be established.
The President regrets that a condition which, in his judgment, is without any justification under the treaty should have been asked. He regards the question thus presented as of a grave and serious character, on the final solution of which must probably depend the continuance of the extradition article of the treaty of 1842. He cannot recognize the right of any other power to change at its pleasure, and without the assent of the United States, the terms and conditions of an executory agreement in a treaty solemnly ratified between the United States and that power. He thinks that the twenty-seventh section of the British act of 1870 was specially intended to exempt the treaty with the United [Page 218] States from the application of any of the new conditions or provisions embodied in that act, and to leave that treaty to be construed, and the surrender of fugitives thereunder to be made, as had been previously done.
He hopes that, on a further consideration, Her Majesty’s government will see, in the section referred to, the effect which he supposes it was designed to have.
But he recognizes that it is for the British government to construe and enforce its own statutes; and should Her Majesty’s government finally conclude that the British Parliament has attached a new condition to the compliance by that government of its engagement with the United States under the tenth article of the treaty of 1842 relating to extradition, requiring from the United States stipulations not provided for or contemplated in the treaty, he will deeply regret the necessity which will thereby be imposed upon him and does not see how he can avoid regarding the refusal by Great Britain to adhere to the provisions of the treaty as they have been reciprocally understood and construed from its date to the present time, or the exaction by that government of a condition heretofore unknown, as the infraction and termination of that provision of the treaty.
You are not authorized to enter into any stipulation or understanding as to the trial of Winslow, in case he be delivered up to justice. His surrender is asked under and in accordance with the provisions of the tenth article of the treaty between the United States and Great Britain of the 9th of August, 1842. He is charged with a crime included within the list of crimes enumerated in the treaty; that crime was committed within the jurisdiction of the United States, and he has sought an asylum and been found within the territories of Great Britain, and the United States have produced such evidence of his criminality as according to the laws of Great Britain would justify his apprehension and commitment for trial if the crime or offense had been committed in Great Britain.
You will communicate the substance of this to Lord Derby, and, should he desire it, you may read it him.
I am, sir, your obedient servant,