Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876
No. 151.
Mr. Hoffman to Mr. Fish.
London, July 3, 1876. (Received July 17.)
Sir: I have the honor to forward to you herewith a copy of a note from Lord Derby bearing date June 30th, in continuation of the argument upon the Winslow question.
I have, &c.,
Lord Derby to Colonel Hoffman.
Sir: Her Majesty’s government have had under their consideration the dispatch of Mr. Fish of the 22d of May, which you did me the honor of communicating to me on the 6th instant, in regard to the Winslow extradition case, and I have now the honor of stating to you the observations which Her Majesty’s government are desirous of offering in reply.
In the first place I must repeat that Her Majesty’s government have always maintained that it is an essential principle of extradition, as permitted or practiced by this country, that a person surrendered on an extradition treaty can be tried for the offense for which he is surrendered, and for no other offense previously committed.
They have maintained and must continue to maintain that this is the proper construction of the treaty of 1842; that it is the meaning which, at the time, was attached and which has since continued to be attached by this country to that treaty, and that it is the meaning which they had understood was attached to that treaty by the Government of the United States.
Upon this, which Her Majesty’s government cannot but regard as the cardinal question in the case, little or nothing is said in Mr. Fish’s dispatch. He dwells at length upon the act of 1870 and upon the arguments by which he maintains that the treaty of 1842 ought not to be affected by that act. Her Majesty’s government look upon the applicability of that act as an important but still as an entirely subordinate question in the case. If that act did not exist, Her Majesty’s government would feel themselves equally bound to maintain the position which they have taken upon the construction of the treaty of 1842.
It is desirable to advert again to the provisions of that treaty. It provides that Her Majesty would deliver up to justice persons seeking an asylum or found within her territories, charged with crimes committed within the jurisdiction of the United States. But this is not to be done unless such evidence of criminality is given as, according to the law of this country, would justify the apprehension and committal of the person, if the crime had been committed in this country.
The meaning of this stipulation obviously is that the country which is called upon to surrender a person who is under its protection may know both the crime of which that person is accused, and also that the evidence discloses facts which would amount to that crime according to the law of the surrendering country.
Her Majesty’s government know what facts would constitute according to British law the crimes of murder or arson or forgery, or the utterance of forged paper. But they do not know what facts would constitute those crimes according to the law of other countries. They maintain the right of asylum until criminality, according to the law of this country, is shown.
If a person within the jurisdiction of Her Majesty were accused of arson and the evidence did not establish a case of arson according to British law, Her Majesty’s government would refuse the extradition. But if the same person were demanded upon an allegation of forgery, and a prima-facie case of forgery according to the British law having been established he were surrendered, and were afterwards to be tried, convicted, and punished for that which might be arson by foreign law, but is not by the law of this country, he would be convicted and punished for the very offense for which his surrender had been in the first instance refused.
These considerations apply more forcibly in the case of political offenses.
Her Majesty’s government do not suggest that the Government of the United States [Page 258] would desire or seek the surrender of political refugees; but the construction of treaties of this kind must be general, and the same words cannot have different meanings when applied to different countries.
One main object of requiring evidence to be adduced not merely establishing an offense called by the name of the offense specified in the treaty, but establishing the offense of that name according to the law of the surrendering country, is to prevent the surrender of a person being made upon a charge of a crime of equivocal and uncertain meaning, and a trial being subsequently had upon facts which would be considered here as establishing a political offense, and not the crime for which the surrender was made.
Mr. Fish, indeed, contends that the risk as to extradition for offenses really political may be disregarded, but Her Majesty’s government cannot regard as satisfactory the only security against this risk which he offers.
The circumstances alleged to constitute any one of the offenses specified in the treaty may be such as to show the close connection of political considerations with the offense charged, and the surrendering country, which must be the judge of whether the offense is or is not political, must have an opportunity of exercising this judgment by the facts of the case being presented to it.
There may be no political considerations connected with the offense for which a prisoner is surrendered, while there may be political considerations connected with the offense for which he is tried; but if a prisoner is surrendered on the one charge and tried on the other, the political ingredient is withdrawn from the judgment of the surrendering country.
Mr. Fish’s answer to this difficulty is that no administration would dare to violate the rights of political asylum by obtaining a prisoner on one charge and trying him for a political offense.
Now, if the Government of the United States were the masters of the prosecution, Her Majesty’s government might accept this assurance.
But Mr. Fish, at the same time that he offers this assurance, informs Her Majesty’s government that, if the offense is one against the laws of one of the States, the Attorney-General of the United States has no power to interfere directly or indirectly, nor has the President any power to control the proceedings or ever to pardon those tried and convicted.
It must be apparent from these considerations that the objects so carefully provided for by the stipulations of the treaty would be wholly frustrated if a person, surrendered upon the allegation and proof of one offense, were afterwards to be tried for other offenses not alleged or proved as a ground of surrender. Her Majesty’s government consider that this conclusion is the necessary result of the provisions of the treaty itself, but they are able to adduce the strongest possible contemporaneous evidence that this was the meaning placed upon the treaty by both parties to it.
Her Majesty’s government, upon the conclusion of the treaty, immediately applied to Parliament for power to give effect to surrenders according to its provisions. By the third section of the act of 1843, (6 and 7 Vic., c. 76,) Her Majesty’s secretary of state is authorized to order the delivery of the person committed on the charge of the specified offense to an officer who is, in the words of the statute, “to convey such person to the territories of the United States to be tried for the crime of which such person shall be so accused.” The words of this statute sufficiently attest the meaning attached to the treaty by the Parliament of Great Britain. The act of Congress of August 12, 1848, (c. 47, sec. 3,) is the best exposition of the construction put upon the treaty by the United States. It is in these words: “It shall be lawful for the Secretary of State to order the person so committed to be delivered up to such person or persons as shall be authorized, in the name and on behalf of such foreign government, to be tried for the crime of which such person be so accused.” Her Majesty’s government have stated that they had reason to believe until the present controversy arose that the Government of the United States continued to place upon the treaty of 1842 the same construction which it was thus originally supposed to bear. They consider that they were justified in entertaining this belief by the course taken by Mr. Fish in 1871, 1872, and 1873, as detailed in my note of the 4th ultimo.
During these years the draft of a new and extended treaty of extradition was under negotiation between Her Majesty’s government and the Government of the United States. That draft treaty as proposed by Her Majesty’s government contained this article:
“Article VI. When any person shall have been surrendered by either of the high contracting parties to the other, such person shall not, until he has been restored or had an opportunity of returning to the country from whence he was surrendered, be triable or tried for any offense committed in the other country prior to the surrender, other than the particular offense on account of which he was surrendered.”
Alterations in the draft treaty were proposed by the Government of the United States, to some of which Her Majesty’s government were willing to accede, although upon one article, that relating to political offenses, they were unable to agree to a [Page 259] form of procedure satisfactory to the Government of the United States; but throughout the whole of the negotiation no objection whatever was made by Mr. Fish to the sixth article, which, on both sides, was assumed to be nothing more than the expression of the principle of extradition as it then stood. Indeed Mr. Fish not merely made no objection to the article, but he gave his distinct approval by appending to it a paragraph emphasizing its provisions in these words: “No person shall be deemed to have had an opportunity of returning to the country whence he was surrendered, until two months, at least, shall have elapsed after he shall have been set at liberty and free to return.”
In opposition to these arguments drawn from the construction of the treaty, and from the exposition of it admitted by both the contracting parties, Her Majesty’s government cannot admit the propriety of placing, as Mr. Fish is disposed to do, the dicta of text-writers or the opinion expressed by the late under secretary of state in his evidence given before the committee of the House of Commons.
As to the case of Heilbronn, Her Majesty’s government much regret that a charge was made against this prisoner not justified by the extradition warrant under which he was received; but though the charge was preferred according to the ordinary forms of criminal procedure, in Her Majesty’s name, it is the well-known course of law in this country that every private individual has the power of presenting an indictment, while, as a matter of fact, the presenting or finding of that indictment is entirely unknown to any person representing the executive government. Her Majesty’s government must repeat that this departure from the extradition warrant in the case of Heilbronn was not the act of Her Majesty’s government, nor was it called to their attention or known to them; and Her Majesty’s government are not now aware of any other instance which has occurred in this country, during the long period that has elapsed since 1842, where a person surrendered under the treaty of 1842 has been put upon his trial for an offense other than that in respect of which his extradition was demanded.
As to the cases in Canada referred to by Mr. Fish, the attention of Mr. Justice Ramsey in Rosenbaum’s case appears to have been occupied with the question as to the consistency of the act of 1870 with the treaty of 1842, and with the question whether the prisoner on his trial could set up as a defense the irregularity of his extradition, both of which questions are collateral to the main argument. With respect to the case of Worms, it is to be regretted that the appeal from the order for his extradition was not permitted to proceed in due course, by reason of an act of the legislature of the Dominion taking away the right of appeal in extradition-cases having passed after Worms’s notice of appeal had been given. It is not easy to appreciate the inference which Mr. Fish seeks to draw from a reference to the debate in the British Parliament in 1866, since this debate exhibits in the most striking manner that the secretary of state and attorney-general affirmed distinctly the same principle of construction for which Her Majesty’s government now contends.
Lord Stanley said, “as to the proposal that the French government should be required to enter into an undertaking that they would not try any person for any offense other than that for which he had been given up, he thought that that would be a very feeble protection indeed; for, assuming for the sake of argument, that the French could act in the manner suggested, and he really begged pardon for assuming it even for that purpose, he could only say that a Power which could act in such a manner would not be bound by an undertaking of the kind proposed.” The present lord chancellor, then attorney-general, in the course of the same debate, added: “With respect to the latter part of the honorable member’s amendments which required that the person should not be tried for any offense but that for which he had been given up, we should certainly have a well-founded complaint against any country that demanded a man to be given up for one offense and then proceeded to try and punish him for another. But, on the other hand, to put such words into an act of Parliament, which did not exist in the treaty, would only be offering a gratuitous insult to a foreign Power to whom it applied, without securing any real advantage.” It would thus appear that both the speakers treated as an impossible hypothesis that any state should do that which the United States Government now claim to have the right to do. It is the obvious inference that the objection made in 1866 to the condition then proposed was not that it was inconsistent with the treaty-obligations already in existence, but that it was an unnecessary demand that those treaty-obligations should be expressed in distinct words. Mr. Fish states that Lord Derby contends that the British extradition-act of 1870 imposed no new condition upon the treaty of 1842, and Mr. Fish then proceeds to suggest a doubt whether that contention is really relied upon.
Her Majesty’s government do undoubtedly and unreservedly maintain that the act of 1870 imposes no condition, new in substance, upon the treaty of 1842, inasmuch as the true meaning of that treaty is that a person accused of a specified crime or specified crimes shall be delivered up to be tried for the crime or crimes of which he is accused, and an agreement between two Powers that the right of asylum, equally valued by both, shall be withdrawn only in respect of certain specified offenses implies, as plainly as if it were expressed in distinct words, that in respect of the offense or offenses [Page 260] laid to his charge, and such offense or offenses only, is the right of asylum so withdrawn; and that, as a consequence, independently of the act of 1870, it is the duty of each government to see that the treaty-obligations in that respect are recognized and observed by the receiving Power. Her Majesty’s government think it unnecessary to repeat the view they have already expressed as to the extent to which the action of the executive of this country is, in their opinion, fettered by the act of 1870, and the more so because their previous references to that act appear to have led Mr. Fish to fail to appreciate the view of Her Majesty’s government of the effect of the treaty of 1842, even if the treaty had stood alone. Mr. Fish states that the case of Winslow was alone the subject of requisition at the date of his dispatch, and that the case of Winslow seems to have been overshadowed by the case of Lawrence.
Her Majesty’s government, however, desire to point out that it was with reference to the case of Lawrence that the question at issue between the two governments arose, and the case of Lawrence has throughout been assumed to govern the other cases.
Lawrence was surrendered to the Government of the United States upon a charge of forgery. He was indicted in the United States on a charge for smuggling, which is not one of the extradition-offenses. Mr. Fish, in his dispatch of the 24th of May, states that this indictment for smuggling was found against Lawrence before the demand for his extradition.
This may be so, but Lawrence was arrested and held to bail on this indictment for smuggling after his extradition, and it would appear that Mr. Fish himself stated to Sir Edward Thornton, on the 27th of November, that, though Lawrence had not been then arraigned for any other crime than that for which he was given up, he had given bail to appear for other crimes. These proceedings in the indictment for smuggling, taken after extradition, made the case in substance the same as if he had been indicted for smuggling after the extradition.
Had these proceedings been taken per incuriam or had they been disavowed by the Government of the United States, Her Majesty’s government would have gladly accepted such an explanation. The Government of the United States, however, justifies these proceedings and maintains distinctly and unreservedly their right to try Lawrence, if they so think fit, upon this additional charge; and they maintain that this is the meaning and construction which they place upon the treaty of 1842. Under these circumstances, this issue having been distinctly raised by the Government of the United States and distinct notice having been given by them to Her Majesty’s government of the construction which they place upon the treaty, Her Majesty’s government have been forced, most reluctantly, to come to the conclusion that they could not surrender Winslow and the other prisoners lately in custody, without appearing to admit the claim of the Government of the United States and without exposing, in a manner which they are not justified in doing, the persons whose surrender is asked for, to be dealt with as Lawrence has been dealt with, and as he is claimed to be dealt with.
Her Majesty’s government, sharing to the fullest degree the regret expressed by Mr. Fish that any difference of opinion as to the interpretation of the treaty of 1842 should lead to its termination, informed you on the 26th ultimo of their readiness to sign an additional article to the treaty, in the words of the draft article to which Mr. Fish gave his assent throughout the negotiations which were carried on in the years 1872, 1873, and 1874, with the addition which he himself then suggested. On learning that this offer was not acceptable to Mr. Fish, although he expressed his willingness to make a new and enlarged treaty, Sir Edward Thornton was authorized to propose the immediate signature of a treaty containing the articles agreed upon in the draft treaty of 1874, with the addition of a further clause intended to meet an objection formerly made by Mr. Fish, on a question of procedure in reference to political offenses. This draft treaty contained a full and complete list of crimes agreed upon with the Government of the United States, and Her Majesty’s government hoped that this proposal might have been accepted by the Government of the United States before the time when the release of Winslow became necessary had arrived. It was, therefore, with sincere regret that they learned by a telegram from Sir Edward Thornton, dated the 8th instant, that Mr. Fish considered it impossible to negotiate a new treaty under the pressure of what he looked upon as a menace of violation of the treaty of 1842.
Her Majesty’s government desire unreservedly to express their belief that the Government of the United States, in maintaining the argument which Mr. Fish expresses, are actuated by a sincere desire to maintain and discharge the rights and duties which, in their judgment, flow from the treaty-obligations of 1842; and Her Majesty’s government claim for themselves to have the same construction placed upon the motives which have influenced them during these negotiations.
Her Majesty’s government would recoil from any course which would have the appearance of a failure on their part to comply with what they consider to be the obligations laid by treaty upon them, and they deeply regret that it should have been supposed that, in negotiations with a country so closely connected with their own as is that of the United States, they could use any argument having the appearance of a menace, and above all a menace of the infraction of a treaty, as a means of obtaining a [Page 261] treaty in a different form. Her Majesty’s government are persuaded that to continue to act on the present treaty, so long as one construction is put upon its provisions by Her Majesty’s government and a different construction by the Government of the United States, must lead to misunderstandings and reclamations of the most serious kind. They would on the other hand deeply deplore that the arrangements for extradition between this country and the United States, which have continued so long and operated so beneficially, should be for any length of time suspended; and Her Majesty’s government have been and are prepared at any moment to join with the Government of the United States, if they are disposed to do so, in considering without bias or prejudice the terms of a new and if necessary an enlarged extradition-treaty between the two countries, which, while it will protect sufficiently the right of asylum, may prevent that right being so used as to afford impunity for crime.
I have the honor to be, with high consideration, sir, you most obedient, humble servant,