Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1876

No. 350.
Mr. Dart to Mr. Cadwalader.

[Extract.]

Consulate General of the United States of America for the British North American Provinces,
Montreal, April 25, 1876. (Received April 27, 1876.)

Sir: I have the honor to state that, on examining the petition of appeal in case of Charles Worms, that document does not raise the points material in the discussion with Great Britain. Those points were raised on the argument upon the return to the writ of habeas corpus.

* * * * * * *

I transmit herewith a copy of Justice Dorion’s return to the supreme court of Canada in that case.

I have, &c.,

WILLIAM A. DART,
Consul-General.

Province of Quebec,
District of Montreal:

Extradition case.— Treaty between Great Britain and United States.

On the application of Charles Worms for writ of habeas corpus.

Case submitted to the supreme court in conformity with the provisions of the 38th Victoria chapter 11, and the rules of practice made in pursuance thereof.

The accused, Charles Worms, was arrested upon a warrant issued by the Hon. Mr. Justice Ramsay, on a complaint sworn to by one William L. Newman, a copy of which complaint will be found in the annexed appendix, number 1, upon which the said honorable judge issued his warrant, a copy of which is document No. 11 in the appendix. After the return of the warrant, certain witnesses were examined, orally, copies of whose depositions form part of the appendix, as documents numbered 2, 4, 5, 6, 7, 8, 9.

Documents were also produced purporting to be the copy of a warrant issued in the United States and copies of documents sworn to there, consisting of the deposition of the complainant and of other papers sworn to at Washington before another official, not being the person who issued the warrant. Copies of the latter documents will be found in the appendix, marked “Number 3.”

The Hon. Mr. Justice Ramsay committed the said Charles Worms for extradition, and a copy of his commitment will be found annexed to the writ of habeas corpus, which I issued on the fifteenth of February last on the petition of the said Charles Worms, documents 12 and 13, respectively.

Counsel on both sides were heard before me, on the return of the writ of habeas corpus, as to the legality and sufficiency of the commitment mentioned in the return, as also the legality of the original complaint, the warrant thereon issued, and the legality and sufficiency of the evidence upon which the said commitment was made.

The points to which my attention was chiefly directed by the objections urged by the counsel for the accused were—

* * * * * *

I further held that the imperial act of 1870 was, by section 27 of said act, made to apply to Canada, in so far as its provisions were not inconsistent with existing treaties, with the same effect as if an order in Her Majesty’s council had been passed under section 18, declaring said act to be in force in Canada and our local legislation to form part thereof; and that, as section 14 of the act of 1870 * * * * * * * * *

Department of Justice,
Washington, July 16, 1875.

Sir: I submit for your consideration the following opinion upon the petition of Charles L. Lawrence, referred to me under your direction by the Attorney-General on the 21st of May.

The case stated for your interposition is as follows:

The petitioner is a naturalized citizen of the United States, who having departed from this country without intending to return, while on his way was arrested in Ireland, during the month of March, at the instance of this Government, under the treaty of 1842, and after due proceedings was extradited, and in consequence thereof is now in the city of New York in jail. The only charge against the petitioner that was considered in the extradition proceedings was that he had forged the name of one Blanding to a certain bond and oath of entry in the New York custom-house.

The proceedings of extradition were under the British act of 1870.

Immediately upon his arrival in New York the petitioner was arrested, under bench-warrants issued out of the circuit court of the United States for the southern district of New York, upon charges of other forgeries, of conspiracy, &c., that had been committed before his extradition; and since such arrest a capias in a civil action, sued out of the same court, for unpaid duties owing to the United States before his extradition, has been served upon him.

Copies of the above-mentioned warrants, &c., are appended to the petition; the civil capias being in assumpsit, for $1,386,400 on account of unpaid duties.

The petitioner says that he is advised that his “surrender by the British government as aforesaid was made, and by arrangement with the Government of the United States was accepted, subject to the provision of the said act of 1870, which in substance declares that your petitioner 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 crime proved by the facts on which the surrender was grounded, and therefore he prays for instructions to the proper officers not to prosecute him further in such civil suit or for any crime other than the identical one upon which he was surrendered, and that he be discharged from arrest under such bench-warrants,” &c.

The important question presented by the petitioner, therefore, is as follows: Supposing a fugitive criminal to have been extradited in April, 1875, from Great Britain to the United States under the treaty of 1842, and by proceedings taken under the British act of 1870, does the latter Government recover jurisdiction over him in respect of any act, whether civil or criminal, done before such extradition other than the criminal act for which he was surrendered?

Unless under very special circumstance such a question, in the United States, is in its nature legal and not political. In other countries this is not so; but here, inasmuch as extradition is generally regulated by treaty, and as treaties are, of themselves, a part of the “supreme law,” questions as to the effect of extraditions already accomplished are ordinarily questions of law. Questions of law cannot be determined, practically, in civil cases, except by the courts in which they are pending. Such questions, however, in criminal cases pending in courts of the United States, may receive a practical determination at the hands of the President by an order forbidding them to be further prosecuted.

If the petitioner had been surrendered by the British government because of irregular practices by the agents in his extradition, whereby that government had been misled, a question like the above might become political in its nature, and, therefore, cognizable by the Executive. Such practices may be included in the suggestions as to an “arrangement,” made in the petition, although I suppose those suggestions to refer, at least mainly, to some contract binding the United States, and supposed by the petitioner to be authorized by the British extradition act of 1870.

If, therefore, the petitioner has been surrendered because of conduct upon the part of the agents in his extradition not authorized by treaty and yet involving the United States, in point of good faith and honor as its guarantor, I suppose that it is the political department of the Government that must give effect to such guarantee in all suits that may be brought against him. (See Scott’s case, 8 Barn. & Cress., 446.)

But if the immunity claimed by the petitioner be derived from a treaty, either taken alone or as modified by a statute of the United States, or an act of Parliament required to enforce it, it seems that its existence for practical purposes is to be determined, as to the civil action of which he complains, only by the court in which that action is pending, while as to the criminal cases it may be determined either by such court or by the President. However, the President never interferes with a prosecution, unless the question made by the defendant is plainly one which will be decided in his favor by the court as soon as a trial can be reached. If there be doubt about that, the Executive leaves it to the judiciary, where such questions more properly belong.

Upon the evidence in the case made by the petitioner, no political question whatever arises. There is a total absence as well of proofs as of probability in favor of the suggestions tending in that direction.

The petition places the claim of Lawrence to immunity simply upon the allegation that it is expressly conferred by the British extradition act of 1870, under which were had the proceedings in his case at London. Other grounds, however, are taken in the learned and well-considered briefs which have been filed in this behalf, to wit: (1) That such immunity exists, in the very nature of extradition, under the treaty of 1842 alone. (2) That it is conceded by the United States statute of 1869, eh. 141, (Revised Statutes, sec. 5275 5) and, (3) That certain conduct of those who represented the United States in the proceedings for extradition has pledged the Government to allow that immunity.

I have already dealt with the last of these suggestions; but I repeat that there is no evidence of such conduct, or of any corresponding impression, having been received by the British government, or by any of its officials. I have read the proceedings. They took place before Sir Thomas Henry, a distinguished magistrate, (and eminent authority in matters of extradition,) who is credited with having had much to do with framing the act of 1870. Both the United States and the petitioner seem to have been well represented by counsel; the formed by Richard Mullens, esq., a prominent member of the English bar, whose special learning in extradition law was recognized by his being called in 1868 to testily before the special committee appointed by the House of Commons to examine and report upon the state of the law of extradition, and also to advise amendments thereto. During those proceedings nothing óccurred beyond the ordinary routine in extradition cases. Whether anything of the sort suggested by the petitioner’is to be implied from the fact that those proceedings were under the act of 1870, will be examined hereafter.

It is quite as plain that there is nothing pertinent to the claim of the petitioner in the provisions of the United States statute of 1869, ch. 141, sec. 1, (Revised Statutes, sec. 5275,) which is in these words:

“Whenever any person is delivered by any foreign government to an agent of the United States for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safe keeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safe-keeping and protection of the accused.”

A simple perusal of this act is enough to show that it has no application, direct or indirect, to the case of the petitioner. It certainly intimates that extraordinary attention by the Executive to the party extradited may properly be given, until his final discharge on account of the crime for which he was surrendered, and for a reasonable time thereafter; but attention to what end? The statute answers, to the end of his “safe keeping,” i. e., keeping safe from escape or rescue, acd also of his “security against lawless violence,” i. e., against mobs or the like. If Congress had intended that the party surrendered should be free during such time from also the ordinary action of the courts, this would have been the place to express it. Their silence is significant.

The above remarks leave for consideration the two principal suggestions by the petitioner: 1, that the British act of 1870 has so qualified the treaty of 1842, in practice, as to confer the immuuity claimed upon all who are surrendered by means of its machinery; or, 2, that such immunity arises by necessary implication out of the treaty alone.

At the outset I remark that the act of 1870 has no bearing whatever, for the past or the future, upon civil suits brought for causes of action existing previously to the surrender.

Its application in any case is to “offenses” only. Therefore, the suit brought by the United States for unpaid duties will not be further considered under the present topic.

1. In Great Britain a treaty of extradition is not of itself law, but requires legislation to give it effect.

Before 1870, the treaty of 1842 was rendered effective by acts that were repealed by the act now under consideration, and since then the latter act has been the only one giving it effect. After resorting to that act in order to secure an extradition, of course the United States will give effect to any conditions which it imposes. The importance of ascertaining its meaning is therefore conceded.

That act is one of universal application, intended to supply for all extradition agreements, past or to come, the place of the special acts for each treaty theretofore in use. It refers to such agreements by the terms arrangements and treaties; the former is the term usually employed; the latter occurs only in the 27th section. While this act was upon its passage through the House of Commons, the attorney-general, (Collier,) who was partly in charge of it, stated that the word “arrangement” was used to include not only treaties, but future agreements for extradition less formal than treaties. (Hansard, vol. 202, p. 305.) Theretofore, extradition had been provided for only by treaty. The act affords a definition of the word “arrangement” in some respects which is sufficient for our purposes. It is an agreement for extradition, that at all events must have gone before the proceedings which it authorizes, and have been published in an order in council. The fact that proceedings were taken under the act of 1870, therefore, cannot, as is suggested by the petitioner, either amount to an “arrangement” or have impressed British officials with the belief that there had been an “arrangement.”

Again, the act of 1870 is divided into two parts: one relating to future, and the other to past agreements for extradition. Except for the twenty-seventh section the act would not apply to the treaty of 1842. As is usual in recent British legislation, it contains a section defining certain terms used therein. One portion of its definition of “fugitive criminal” is, a person accused of an “extradition crime;” and it defines “extradition crime” to be one of the crimes described in the first schedule to this act.

I call attention to these definitions for the purpose of showing that the provisions of the act (other than in the twenty-seventh section) are predicated upon the existence of relations betwixt Great Britain and the foreign state which avails itself of or is bound by them, that entitled the latter to ask for a surrender on account of any of the nineteen crimes mentioned in the first schedule, whenever it becomes bound to recognize the immunity now claimed by the petitioner; that is, excluding as yet all consideration of its twenty-seventh section, this act has no application to the relations of the United States and Great Britain, because these are relations for the surrender of fugitive criminals on account of the seven crimes of the treaty of 1842, and not on account of the nineteen crimes of the act of 1870. Except for the twenty-seventh section, proceedings for extradition by the United States would have continued to be under the acts previously passed to enforce the treaty of 1842.

Take, for example, the clause specially relied upon by the petitioner, viz: “A fugitive criminal shall not be surrendered unless provision is made by law or arrangement that, until he has been restored, or had an opportunity of returning to Her Majesty’s dominions, he shall not be detained or tried for any offense committed prior to his surrender, other than the ‘extradition crime.’” Under the definition of the terms “fugitive criminals,” and “extradition crime,” alluded to above, is it not evident that this clause does not apply to the case of one whose character as a fugive depends, not upon the first schedule of the act of 1870, but upon the tenth article of the treaty of 1842? So, in the second section of the act, by which its provisions are confined to cases where an arrangement has been made for the surrender of “fugitive criminals,” if the definition be applied to that term, it is apparent that cases in which the first schedule does not apply do not, under its general provisions, come within the act.

The twenty-seventh section, therefore, is of great importance in this discussion. After expressly repealing the acts which theretofore gave effect to the treaty of 1842, that section provides as follows: “And this act (with the exception of anything contained in it which is inconsistent with the treaties referred to in the acts so repealed) shall apply (as regards crimes committed either before or after the passing of this act) in the case of the foreign states with which these treaties are made.” That is, in applying the previous parts of the act to (say) the treaty of 1842, this section omits from such application anything in the act inconsistent with the treaty. In other words, the immunity claimed by the petitioner must be referred to the treaty considered alone, inasmuch as in all cases of difference between them the treaty controls the act, and not the act the treaty.

It is not too much to say that this is as it should be; for admitting the power of Great Britain by an act passed in 1870 to change a treaty contract made in 1842, it is not pleasant to conclude that such power has been exercised. For in such case the change has been made without notice to the United States; a circumstance which, in connection with the treaty of 1842, (expressly providing, as that does, for its own avoidance by short notice from either party,) might involve not only a want of courtesy toward the United States, but a want of that perfect good faith which the petitioner very properly desires to be observed by the United States toward Great Britain. There has been in this case no want of perfect good faith upon the part of either government or upon that of the officials of either; but it is apparent that if the case of legislation by Great Britain and of proceedings by the United States had been as conceived by the petitioner, reclamations by the former government against the latter on the score of ill faith might be attended with special complications.

The view taken above as to the 27th section is confirmed by the language of the court of Queen’s Bench in Bouvier’s case. (27 Law Times Rep., 844; 42 Law Journal Rep., Common Law, 17; 12 Cox Cr. Cas., 303.) Bouvier was a French fugitive, demanded in 1872, under the extradition convention of 1843 between France and Great Britain, effect to which had, before 1870, been given by the same acts that had given effect to the treaty of 1842.

The treaty contained no clause granting immunity, but the proceedings against Bouvier had been taken under the act of 1870. The case therefore is so far on all fours with the present. During the proceedings (in the island of Jersey) a suggestion by the fugitive that upon surrender he might be tried in France for old offenses other than the extradition crime, was met by proof that by the French domestic law he could be tried only for that crime. In the Queen’s Bench the attorney-general, (Coleridge,) who represented the French government, on that part of the case relied not only on the above proof, but also greatly upon the point that that restriction upon jurisdiction over fugitives did not by the 27th section apply to the convention with France. The proof rendered it unnecessary to decide the latter point, as in either event Bouvier would be surrendered; but the court (Cockburn, Blackburn, and Mellor) conceded that Parliament had intended so to provide, and inclined to think that their words had effected such purpose. They, however, suggested further legislation to clear up the doubt; but although an amendatory act has since been passed, that point was left untouched. We may suppose that the attorney-general, as member of Parliament, differed with the judges upon the necessity of amending language which as one of the introducers of the bill he had probably closely considered in 1870. Indeed, it seems that if that language was sufficient to draw from the lord chief justice the expression, “I see plainly that was the intention of the legislature—that is to say, it was intended while getting rid of the statutes by which the treaties were confirmed to save the existing treaties in their full force and effect,” (Bouvier’s case, L. T., p. 846,) it is sufficient for all purposes.

The earnestness with which the distinguished counsel for Lawrence has pressed the suggestion that what the court in Bouvier’s case were in doubt about was whether the convention with France had not been abrogated entirely, and not whether it had been saved in its full force and effect, renders it necessary to say that this cannot be so; because Bouvier was demanded under the convention, and the court had no hesitation in ordering his surrender. To make his surrender possible, it was necessary not only that there should be a machinery-act like that of 1870, but also a treaty, or an arrangement authenticated by an order in council. The report states that there was in existence no other convention for extradition on which the surrender could be based.

I conclude that the British extradition act of 1870 has no bearing upon the question raised by the petitioner.

II. I come now to consider whether the treaty of 1842, taken alone, warrants the petitioner in his claim for immunity.

It is not contended that the treaty confers that immunity expressly. As is well known, the extradition provision therein is one of great simplicity, and specifies no more than that the two govenments will thereafter, upon due requisition, mutually “deliver up to justice all persons who being charged with the crimes of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum or shall be found within the territory of the other.” Therefore the only question remaining is, whether, when the treaty was made, the parties thereto understood that after surrender fugitives would be liable only for the crime made out in the proceedings therefor. Such understanding might appear in the correspondence between the negotiators of the treaty, or the debates in Congress and Parliament, or in subsequent action by courts in cases affecting persons surrendered.

No reference to the present topic is contained in such correspondence or debates, or, as I am informed, in any subsequent diplomatic correspondence between the two governments; and the decisions of the courts in the two countries, so far as they can be traced, are (without an exception) to the effect that fugitive criminals are not entitled to such immunity.

It is to be remarked that the language of the treaty is probably that of the American negotiator, Mr. Webster, a gentleman familiar with the practice in cases of surrender of fugitives from justice between the States, and desirous that, as to the offenses named in the treaty, that practice should be extended especially to fugitives escaping beyond the long neighboring Canada line. The simple, pregnant expression in the treaty, requiring fugitives to be delivered “to justice”—neither more nor less—was probably suggested by the parallel expression in the Constitution, which describes those who are to be surrendered between the States as those who flee “from justice.” The opinion of Judge (afterward Mr. Justice) Nelson, in Williams vs. Bacon, 10 Wendell, 636, expresses briefly what I believe has been the uniform American doctrine upon this subject. In that case, a fugitive had been surrendered (by Massachusetts to New York) on a charge of obtaining goods by false pretenses. After surrender he was arrested in a civil suit. On moving for his discharge from arrest, as being a breach of public faith, his counsel said, “On the requisition of the governor of this State, he has been delivered up by the governor of another State to answer to a criminal charge—not to be subjected to arrests here on civil process.” To this Judge Nelson said: “There is no pretense that the criminal proceeding in this case was a mere pretext to bring the defendant within the jurisdiction of the court for the purpose of proceeding against him civiliter. The argument of the defendant’s counsel in this particular is not supported by the facts of the case. Had such facts appeared, the defendant would have been discharged. As it is, the motion is dismissed, with costs.”

I believe that it will not be disputed that, according to American domestic international law, fugitives from justice, when bona fide returned to justice, are returned to it without any qualifications arising out of the fact that they had almost succeeded in committing a fraud upon its jurisdiction by flight. I say when returned bona fide, because it is beyond doubt that no jurisdiction can arise in case the government which made the surrender have been induced to do so by deceit. I will add that the recognition of the above rule of jurisdiction, in the relations of so many intelligent, well-ordered communities, affords a strong presumption that it is not immoral, or in any sense contrary to first principles; and also that as the relations between foreign governments become more and more free from collateral obstructions, (one of which I shall mention before I conclude,) this will become more and more the rule in all extraditions.

The cases in which American courts have held that persons surrendered under the treaty of 1842 were liable for other offenses than the extradition crime are those of Caldwell (8 Blatchford, 131) and Burley, (Clarke on Extradition, 2d ed., p. 90, N.; also, Report of British Extrad. Comm., 1868, pp. 53 and 60.) In Adriance vs Lagrave, (American Law Register, May, 1875,) the court of appeals of New York held the same doctrine as to a fugitive arrested in a civil suit, although the extradition was discredited as having been “ostensibly” for a crime.

The above are the only American cases on this subject which I have met; that of Sanford vs. Chase, 3 Cowen, 381, cited by the petitioner, is not in point.

Resting upon the above uncontradicted practice and decisions as proof that it is the universal understanding of the authorities in the United States that fugitives, when surrendered to justice, without more being said, are surrendered thereto generally, absolutely, and simply, I will now inquire whether the British doctrine differs therefrom.

The special extradition committee of the House of Commons referred to above consisted of eighteen persons, among whom were some of the most distinguished public men of the empire, viz: Messrs. Bouverie, Layard, Walpole, W. E. Forster, Stansfield, J. S. Mill, Sir Francis Goldsmid, Sir R. P. Collier, and the solicitor-general.

Their labors issued in the enactment of the law of 1870. In order to obtain particular information upon the topic of extradition, they summoned before them, and examined as experts, Sir Thomas Henry, E. A. Hammond, (the permanent under secretary of state for foreign affairs,) Mr. Mullens, and others. I have looked carefully through the proceedings and report of the committee. The evidence taken by them is reported at length. At the time of his examination, Mr. Hammond had been in public office continuously for forty-five years, and had been under secretary since 1854. I think that it must be conceded that any statement by him of the English view of the matter, especially when acquiesced in by the eminent men of various shades of political belief before whom it was made, must be accepted as correct. Mr. Hammond called the attention of the committee to Burley’s case (cited above) as one in which an American court had proceeded to put a fugitive surrendered by Great Britain upon trial for an offense other than the extradition crime, and stated that while it was pending the matter had been referred to the law-officers of the Crown, and that they had held that he might be so tried; at another point he expresses his own personal opinion as being to the same effect. (Question 1032 and 206.) The former passage in his evidence is as follows: “The question was referred to the law-officers in this country, and it was held that if the United States put him bona fide on his trial for the offense in respect of which he was given up, it would be difficult to question the right to put him upon his trial also for piracy, or any other offense which he might be accused of committing within their territory, whether or not such offense was a ground of extradition, or even within the treaty.” No exception was taken to either statement, although several members of the committee made remarks thereupon. I suppose that the requirement therein of a previous bona-fide trial for the extradition crime is due to the circumstance that the case submitted went upon that hypothesis, in which event, of course, the opinion would conform to such special feature. It seems plain, inasmuch as the bona fides of the extradition is the important matter, that, in the absence of a treaty rendering a certain sort of evidence thereof exclusively admissible, any pertinent evidence is competent. A previous trial is plain and high, but not the only, evidence of bona fides in the previous proceedings for extradition.

In the minutes of the committee it is also stated that one Heilbronn, having been surrendered by the United States to Great Britain for forgery and acquitted thereof, was afterward put upon trial by the latter for a larceny committed at the same time, and was convicted. (Question 1152, &c.) Paxton’s case in Canada is to the same effect. My attention has been called to these and some of the cases cited above by Mr. Clarke’s Treatise on Extradition.

A moment’s attention to the argument in Bouvier’s case (above) will show that the court assumed that, previously to the act of 1870, the French treaty of 1843 (and so, of course, the American treaty of 1842) sanctioned trials for offenses previous to surrender other than the extradition crime.

I understand these cases to be uncontradicted in Great Britain, and therefore that the executive and judicial authorities of that government agree with those of the United States in pronouncing against the existence of the immunity claimed by the petitioner under the treaty of 1842, considered alone.

Upon the whole I am of opinion:

I. That as there has been no promise or conduct by any person who represented the United States in the proceedings for the petitioner’s extradition which modifies the operation of the treaty upon his present condition, that condition is here a question of law, not of policy.

II. Therefore, that the President cannot interfere in the civil suit pending against the petitioner; and

III. That no ground has been laid for an order to discharge the petitioner from further prosecution upon the criminal matters specified in the petition.

Inasmuch as, according to the views of this Government, extradition is wholly a matter of positive international law, I have confined the above discussion to the relations actually existing betwixt the United States and Great Britain. I have therefore omitted to remark upon the French domestic regulation of 1841, by which this immunity is provided for fugitives extradited to France. For the same cause, it seems unnecessary, except incidentally, to refer to the circumstance that the similar feature in the British act of 1870 is due, not to a conviction that it is proper in itself, but to a desire to prevent all chance that a fugitive may be demanded for one offense and then tried, besides, for an offense in its nature political. (Hansard, vol. 202, p. 302; Report Extrad. Comm., question 666, &c) The reason for inserting so sweeping a provision, to effect an object so limited, may be gathered from the minutes of the committee of 1868. Briefly stated, it is that, as nations differ upon what constitutes a political offense, the benefit of the British view thereupon can be secured to fugitives only by providing that they shall be triable for no offenses except such as have been previously scrutinized by British officials.

The provision of 1870 is therefore, so to say, collateral, and announces no general principle in international law.

As the general ideas of government and justice which prevail in Great Britain and the United States preserve the likeness due to a not remote common origin, nothing, either past or apprehended, has suggested to either party the propriety of putting an end to the extradition agreement of 1842 by notice, as provided in the eleventh article of the treaty. This would be a natural and easy step toward the introduction of a stipulation like that in the act of 1870. As regards each other, therefore, these powers prefer the agreement of 1842 to the one last mentioned, which, however, each of them has of late adopted in arrangements with some other states. Until something has occurred to render either of these powers apprehensive that political offenders cannot be protected against the other, unless by restricting jurisdiction to the extradition crime, the rule of the treaty of 1842 will probably remain in force. In the mean time, that upon a proper occasion the Government of the United States will either suggest or will consent to such a restriction is shown by its recent treaties with Italy, 1867, and Nicaragua, 1868. (Statutes at Large, vol. 15, p. 629, and vol. 17, p. 815.)

I am, sir, very respectfully, your obedient servant,

S. F. PHILLIPS,
Solicitor-General.

The President.

[Extract.]

United States circuit court, southern district of New York.

The United States	}
vs.
Charles L. Lawrence.

March 27, 1876.

Benedict, J.:

This case comes before the court upon a demurrer interposed by the Government to a rejoinder filed by the defendant.

The proceedings commence with an indictment, charging the accused with several offenses—all being forgeries—alleged to have been committed within the jurisdiction of this court, and all by statute offenses against the United States. * * * * *

In disposing of the questions argued before me upon this demurrer, I first notice the position taken that all extradition proceedings by their nature secure to the person surrendered immunity from prosecution for any offense other than the one upon which his surrender is made.

This question is not open in this court. It was decided in Caldwell’s case, (8 Bla., p. 131.) That determination has since received strong support from the decision of the court of appeals in this State, in Adrianee vs. Lagrave, (59 N. Y., p. 115,) where the existence of any such immunity was denied in a civil case, and it should be noticed that the present circuit judge of this circuit took part in the decision of the court of appeals, being then a member of the court. This ground of defense is therefore dismissed with the remark that an offender against the justice of his country can acquire no rights by defrauding that justice. Between him and the justice he has offended, no rights accrue to the offender by flight. He remains at all times and everywhere liable to be called to answer to the law for his violations thereof, provided he comes within the reach of its arm.

But here it has been contended that the accused has such immunity by reason of the provisions of the treaty of 1842, under which his surrender was made, which it is correctly said is a law of the United States, binding upon the courts.

The decision of Caldwell’s case is decisive of this question also, for Caldwell was surrendered under the treaty of 1842. But as no argument was made in Caldwell’s case based upon the provisions of this particular treaty, the argument now made in support of this construction of the treaty may properly now be examined.

At the outset, let it be noticed that no language is used in the treaty which can be supposed to confer the immunity here claimed. On the contrary, the language of the treaty is calculated to repel the idea, for it declares that the offender shall be “delivered up to justice.” A significant and comprehensive expression, plainly importing that the delivery is for the purposes of public justice, without qualification.

It is, however, argued that both the parties to this treaty have placed a construction upon its provisions which confers the immunity for which the accused contends, and reference is made to acts of Congress of 1869 and of 1848, (U. S. Rev. Statutes, § 5272 to § 5275,) and to the British extradition act of 1870, as supporting the assertion.

The act of Congress of 1848 is a general law intended for the protection of extradited offenders, but the protection it confers is expressly limited to cases of “lawless violence.”

It is true that it assumes, as well it may, that the offender will be tried for the offense upon which his surrender is asked, but there are no words indicating that he is to be protected from trial for all other offenses. The absence of any provision indicating an intention to protect from prosecution for other offenses in a statute, having no other object than the protection of extradited offenders, is sufficient to deprive of all force the suggestion that the act of 1848, as a legislative act, gives to the treaty of 1842 the construction contended for by the accused.

So of the act of 1848, the provision of which relied upon is as follows: It shall be lawful for the Secretary of State to order the offender “to be delivered to such person as shall be authorized in the name and on the behalf of such foreign government to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly.”

It does not seem reasonable to suppose that it was the intention of Congress, by the above language, to give a legislative construction to the existing treaty of 1842.

The provision of the act of 1848 is within the broad provision of the treaty, but does not restrict the operation of that provision, and it may be safely assumed that if the intention to limit the effect of or give a construction to that, or if any other treaty had been entertained, assuming such a function to belong to a statute of this character, that intention would have been plainly expressed.

The acts of Congress referred to, therefore, fail to afford a legislative construction of the treaty in the particular under consideration.

It is still more difficult to find support for the doctrine of the defense in the provisions of the British extradition act of 1870.

How can it be that, without any action on the part of the treaty-making power of the United States, the Parliament of England, by a statute of England, passed 28 years after the treaty of 1842, can engraft upon that treaty a provision of immunity not found in the treaty, and which must thereafter be enforced by courts as part of the laws of the United States?

The effect proper to be given by the executive department of the Government to any condition found in an extradition statute of England to which the Government of the United States has assented in any particular case, is not under consideration. Here the question is judicial, and it is whether the British act of 1870, by reason of its subject-matter, becomes a law of the United States, and as such affords a legislative construction of this treaty binding upon the courts of the United States.

Upon such a question no time need be spent, and it is dismissed with the observation that it would appear that the English courts incline to the opinion that the act of 1870 has no effect in England even to limit the operation of the treaty of 1842, as is seen by the opinions delivered in the court of Queen’s Bench, in Bouvier’s case. (27 Law Times R., p. 814.)

The words of the lord chief justice in that case are, “I see plainly that it was the intention of the legislature, that is to say, it was intended (by the act of 1870) while getting rid of the statutes by which the treaties were confirmed to save the existing treaties in their full force and effect.”

Nor is it made to appear that any such construction of the treaty of 1842 has been adopted by the executive department of either government.

An agreement for such immunity in the present instance is setup by the plea.

But it is competent for the Government of the United States to enter into such an agreement with the government of England in the absence of any provision for immunity in the treaty. And the demand for such an agreement on the one side, as well as the giving thereof on the other, leads to the inference that no such protection is afforded by the treaty itself. A single instance of such an agreement does not, therefore, help the argument.

The understanding of the treaty by the executive department is better shown by the action taken or omitted in the cases that have arisen where there has been no agreement. So in the case of Heilbronn, who was surrendered by the United States, upon the request of England, for an extradition crime, a trial was had in England for an offense not provided for in the treaty, without interference by the executive there, and without complaint from the Government of the United States. So, also, Burley, an offender surrendered by England to this Government, was put upon trial in this country for an offense other than the one upon which he was extradited; and the case being called to the attention of the law-officers of the Crown, it was considered that “if the United States put him bona fide upon his trial for the offense in respect of which he was given up, it would be difficult to question the right to put him upon his trial, also, for piracy, or any other offense which he might be accused of committing within this territory, whether or not such offense was ground of extradition or within the treaty.”

No case has been referred to where the right above spoken of has been questioned by the British government. On the contrary, if I am correctly informed, such right has not hitherto been denied in England.

As to the effect of the fact of a previous trial for the offense of which the offender was given up, to which allusion is above made, it is plain that such fact is immaterial in determining the judicial question where legal immunity is set up by way of defense in a prosecution for other offenses, however important that fact might be, as evidence of good faith in determining the political question when it arises.

It may be added that the action of the executive department of the Government of the United States, in the cases where extradited offenders have been tried in this country for offenses other than those upon which their surrender had been asked, has a significant bearing upon the legal question under consideration; because in criminal cases, as distinguished from civil cases, the Executive, by reason of the power to pardon, is not confined to a consideration of the political question alone, but may also act upon a determination of the judicial question.

But it is further said that the British act of 1870 amounts either to an abrogation of the extradition section of the treaty of 1842, or to a modification of the provision, and inasmuch as by the eleventh section the Government of Great Britain could at any time abrogate that portion of the treaty, the act of 1870, if considered by the Government of the United States as an abrogation, would have been so declared, and in the absence of such a declaration must be considered to be acquiesced in by the Government of the United States as its construction of the treaty, and becomes a part of the treaty binding upon the courts.

This proposition is answered by what has been already said in regard to the effect of the British act of 1870, and the action of the Government of the United States in the cases which have hitherto arisen.

Moreover, if the action of the two governments and the act of 1870 be given the utmost effect possible in favor of the accused, all that can be extracted from them is an implied engagement to afford protection to persons extradited in pursuance of the treaty from prosecution for causes other than upon which their surrender was asked, which addresses itself to the political not to the judicial department. It is not intended to suggest that such can be their effect, but simply to express the opinion that in any aspect they have no greater effect, and in view of the language of the treaty cannot be relied on as affording a legislative or executive construction of that instrument binding upon the courts.

It may, therefore, without hesitation be declared that the claim of legal immunity here made is without foundation in the treaty of 1842. In support of this conclusion reference is made to the authority of the court of appeals of the State of New York, which high court in Lagrave’s case was called on to declare the effect of this same treaty.

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