234 



DIPLOMATIC CORRESPONDENCE AND FOREIGN RELATIONS. 



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 . . . 



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 con- 

 tinuance 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 execu- 

 tory 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 

 States from the application of any of the new condi- 

 tions or provisions embodied in that act, and to leave 

 that treaty to be construed, and the surrender of fugi- 

 tives thereunder to be made, as had been previously 

 done. 



On May 4th Lord Derby made a reply to the 

 above, which had been delivered to him with 

 the request that it be substituted for a note ad- 

 dressed to him by Mr. Hoffman communicat- 

 ing it. The following is an extract from this 

 reply : 



Her Majesty's Government cannot assent to the 

 proposition that the English extradition act of 1870 

 imposed a new condition upon the treaty of 1842. 

 They maintain that if that act had never been passed, 

 it would have been the duty of her Majesty's Govern- 

 ment, under the act of 6 and 7 Victoria, cap. 76, upon 

 which the treaty then rested, and the general law of 

 extradition, to have protested against any extradition 

 prisoner being tried in the United States for crimes 

 other than those of which he was accused in this coun- 

 try, and, had that protest been disregarded by the 

 Government of the United States, the British Govern- 

 ment would have been equally bound to require an 

 assurance in any subsequent case that a prisoner would 

 only be tried for the crime or crimes for which he was 

 surrendered. 



And while dealing -with this part of the case, I would 

 ask how the United States Government is prepared to 

 reconcile the views expressed in your note in favor of 

 the assertion of the right of asylum for political of- 

 fenses with the principle you have been instructed to 

 advocate. 



There is no principle of international law more 

 clearly admitted than that advanced by you, that each 

 state is judge of its own administration of justice 

 and, with regard to the right of asylum for political 

 offenses, it is clear that the nation surrendering is to 

 be the judge of what is or is not a political offense, the 

 more so because opinions differ in different countries 

 on this question. 



But if the principle contended for in your note be 

 correct, what is to prevent the United States Govern- 

 ment from claiming a prisoner from this Government 

 for an extradition crime and trying him afterward for 

 an offense which in this country would be deemed a 



Eolitical offense, but which in the United States might 

 e viewed under a different aspect ? 

 Her Majesty's Government believe that the only test 

 and the only safeguard for the liberty of the individ- 

 ual and the maintenance of the right of asylum are to 

 be found in the principle for which they contend, that 

 the crime or crimes of which a man is accused in the 

 country surrendering, which are proved against him 

 there, and for which he is surrendered, are the only 

 crimes for which he ought to be tried in the country 

 claiming, and that without this safeguard the liberties 

 ef the subjects and citizens of the two nations might 



be jeopardized and put into the power of political 

 parties or of the vindictiveness of the receiving gov- 

 ernment, who, ex consessis, is not the proper judge of 

 whether a particular offense is a political one or not. 

 And here I must observe, with reference to your com- 

 ment on the words " deliver up to justice," that if 

 those words can be construed as having the extended 

 meaning for which you contend, namely, "deliver up 

 to justice generally," there would be no object in hav- 

 ing a list of extradition crimes for which alone an 

 accused person can be claimed, and the construction 

 would be in direct opposition to the act of Congress 

 of August, 1848, chap. 147 ; sec. 3, and 6 and 7 Viet., 

 chap. 76, sec. 3, " to be tried for the crime for which 

 he is so accused," the word being identical in both 

 acts. 



I now proceed to consider the effect of the extra- 

 dition act of 1870, and I will state at once that her 

 Majesty's Government do not contend that any of the 

 provisions of that act have any force or effect in any 

 toreign state. 



They look upon that act only as declaratory of the 

 law that is to govern the British Government in the 

 matters to which it refers, and they consider that 

 none of its provisions are inconsistent with the treaty 

 of 1842, section 27. 



It is to be regarded as intended to prevent for the 

 future the evils that were pointed out bv Mr. Ham- 

 mond and others as having occurred, and being liable 

 to occur, in private prosecutions to which the atten- 

 tion of Government had not been called. 



Her Majesty's Government consider the provisions 

 of the act as having been devised, not in the particu- 

 lar interests or for the particular ends of Great Britain, 

 but as the embodiment of what was the general opin- 

 ion of all countries on the subject of extradition, and 

 as being beneficial to all and injurious to none. 



That the general opinion of European nations has 

 justified this view, is proved bv the acceptance, by 

 most of the leading nations of Europe, of extradition 

 treaties based upon its provisions. 



The attention of the United States Government waa 

 drawn to the provisions of the act immediately after 

 it became law, as is shown by Sir E. Thornton's com- 

 munication to Mr. Fish of the 22d of September, 1870 ; 

 and it is evident that Mr. Fish's notice was called to 

 the effect of the restrictions of clause 3, subsection 2, 

 from the question which he shortly afterward put to 

 Sir E. Thornton, whether it would be possible that a 

 stipulation could be inserted in any new convention, 

 that if, during the trial of a person whose extradition 

 had been asked for on a minor crime, such as larceny, 

 evidence previously unknown should appear that a 

 prisoner had been guilty of a higher crime, such as 

 murder, it should be legal to try him for tne latter 

 crime. To this question Sir E. Thornton, by instruc- 

 tion from her Majesty's Government, returned the fol- 

 lowing answer in writing : 



That any provision in the treaty, by which a fugitive sur- 

 rendered for one offense mentioned in the schedule may be 

 tried for any offense committed prior to his surrender, other 

 than the extradition crime for which he was surrendered, 

 would be inadmissible. Indeed, the treaty, if it is to be carried 

 out, must contain a provision exactly to the opposite effect. 



The draught of a new convention between the two 

 countries was afterward prepared, and Article VI. of 

 that draught, as it originally stood, was as follows : 



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 re- 

 turning to the country 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. 



Although much discussion took place on different 

 provisions of this draught-convention, and consider- 

 able alterations and modifications of the original 

 draught were proposed by the United States Govern- 

 ment and adopted by the British Government, not 

 one word of objection was ever raised by the United 



