DIPLOMATIC CORRESPONDENCE AND FOREIGN RELATIONS. 



stances to the knowledge of your Government, in 

 or. In- 1 hut means may bo found for the solution of the 



present ditliculty. 



To this note Secretary Fish replied by tele- 

 gram to General Scbenck, on March 3d, as fol- 

 lows : 



The treatv of extradition between the United States 

 ami t.r.-M Britain admit* no right in either party to 

 rxurt Conditions beyond those expressed in the treaty. 

 Tin- premise now asked in regard to Winslow is not 

 in mvordiince with the treaty, and cannot be given. 

 You will request the surrender of the fugitive on the 

 terms of the treaty. 



A note from Lord Derby to Mr. Hoffman, 

 secretary of legation, in the absence of Gener- 

 al Schenck, under date of March 8th, concluded 

 as follows: 



But, in view of the difficulty created in consequence 

 of what has recently occurred in the case of Lawrence, 

 as well as the positive enactment of section '!, sub- 

 section 2, of the extradition act of 1870, quoted in the 

 second paragraph of my note to General Schenck, of 

 the 2'Jth ultimo, 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 riot, until 

 he has been restored or had an opportunity of return- 

 ing 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 I have the honor to request that you 

 will communicate this decision to your Government, 

 in order that some arrangement may be come to in 

 the matter. 



On March 31st Secretary Fish addressed to 

 Mr. Hoffman as instructions a lengthy reply to 

 the points advanced by Lord Derby above. The 

 following are extracts from this reply : 



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 treuty, 

 the United States is bound by the provisions of the 

 act ot 1670, whether in conflict witli the treaty or not, 

 *nd it claims to have " supposed " that an "effective 

 arrangement was in force " that no criminal so sur- 

 rendered should be tried for any other than the par- 

 ticular extradition offense ; on the faith of which ar- 

 rangement it is claimed that surrenders have hereto- 

 fore 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 sup- 

 port of the belief of the existence of such supposed 

 arrangement. 



These positions are so different from the understand- 

 ing of this Government, and so opposed to the views 

 which it was supposed were entertained by Great Brit- 

 ain, and which nave been recorded in parlimentary 

 papers, which have been asserted in diplomatic cor- 

 respondence, and been recognized in judicial deci- 

 sions in that as in this country, and set forth by writers 

 on extradition law, that I fearn from Lord Derby's 

 note, with surprise equal to my regret, that they ap- 

 pear to be supported by the Foreign Office. 



The act or August 12, 1848, reproduced in the Re- 

 vised Statutes (sections 5270 to 5276), referred to in 

 the correspondence, does not affect or limit the rights 

 f the two Governments on the question. 



This act is simply a general act for carrying into 

 effect treaties of extradition. It provides the machin- 

 ery, and prescribes the general mode of procedure, 

 but does not assume to determine tin- rights of the 

 United States, or of any other state, which ar governed 

 wholly by the particular provisions of the several trea- 

 tit-s, DOT 10 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 tor offenses committed prior to ex- 

 tradition, 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 ex- 

 ception. The United States act of 1848 is equally ap- 

 plicable to all these differing treaties. If the surren- 

 dered 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 ex- 

 tradition 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 yean, 

 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 pre- 

 tense 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 partic- 

 ular one on which he had been surrendered. . . . 



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, out 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 for- 

 eign 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 at- 

 tach 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-exist- 

 ing treaty between the United States and Great Brit- 

 ain, 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 tn. -aty 

 of many years' anterior date, I do not fail to observe 

 that, while by the act Great Britain at-sumes to require 

 that no surrendered fugitive shall be tried in the coun- 

 try which demands his extradition tor u any offense 

 other than the extradition crime " (in the singular), 

 proved by the facts on which the surrender is ground- 

 ed, she reserves to herself the right to try the fugitive 

 surrendered to her for such crimes (in the plural) M 



