Littell's Living Age/Volume 132/Issue 1709/Lord Derby on Extradition
From The Saturday Review.
LORD DERBY ON EXTRADITION.
Reasonable persons both in England and in America will have been disappointed by Lord Derby's answer to Lord Granville on the subject of extradition. It had been supposed that the English government had on further consideration discovered that its contention was untenable, and that, without unnecessarily acknowledging the error, it had quietly corrected the mistake by surrendering the accused persons in whose case a dispute had arisen. It may perhaps be remembered that one Lawrence had been surrendered to the United States under a warrant of extradition on a charge of forgery. It afterwards appeared that he was also accused of other offences, for which it was proposed that he should be prosecuted if he were acquitted on the extradition charge. At the instance of Mr. Cross, who is paradoxically inclined to limit as far as possible the beneficial practice of extradition, Lord Derby applied to the American government for an undertaking that the proceedings against Lawrence should be confined to the charge on which he had been surrendered. Mr. Hamilton Fish, in the name of the president, refused the application, both on the ground that he had no control over the State courts, and because, according to his interpretation, the provisions of the treaty were unconditional. At the same time the Federal government with a laudable desire to avoid causes of irritation, directed the United States attorney not to prosecute Lawrence without special orders except on the extradition charge. Mr. Pierrepont, now American minister in England, and then attorney-general of the United States, sharply reprimanded a subordinate officer who had not strictly complied with his first instructions. Unluckily the English government, dissatisfied with the answer to its communication, refused to surrender two alleged criminals, except on condition that they should only be tried for the crimes set out in the application and the warrant. Even if Lord Derby and Mr. Cross had taken a sounder and more liberal view of the theory of extradition, their action would have been hampered by the Act of 1870, which was passed on the recommendation of a select committee for the purpose of affording additional protection to foreign refugees. According to some legal opinions, a clause in the act exempts from its operation cases of extradition under treaties which were already in force; but the construction is doubtful. It is certain both that a minister of state must obey the municipal law of his own country, and that he cannot use it in derogation of international duties and liabilities. The English government thought it convenient to adopt the more liberal interpretation of the act; but it contended that the treaty, though general in its terms, implied an undertaking that extradition should be used only for the purposes expressed on the face of the demand and the warrant.
On the refusal of the English Government to grant unconditional extradition, the American secretary of state indignantly protested against a supposed attempt to override a treaty by an act of Parliament; but he may perhaps have been satisfied by subsequent explanations that no claim of the kind had been made. He showed at great length and with much cogency that a treaty, like any other document, must be interpreted according to its plain language; and he not unreasonably gave notice that his government would both consider the treaty at an end and refuse in the circumstances to engage in any negotiation for a new arrangement. Lord Derby persisted for a time in his decision, and both English and American criminals had reason to congratulate themselves on the impunity which seemed likely to attend their unlawful operations. Two or three months ago those who were interested in the efficiency of justice learned with satisfaction and surprise that the English government had at last surrendered without condition the persons for whom it had formerly attempted to stipulate contingent immunity. The president immediately gave directions, as he afterwards stated in a message to Congress, that the proper officers should, as formerly, give effect to the treaty. Sir W. Harcourt, in one of his clever attacks on the government, quoted Lord Derby's judicious change of policy in illustration of the blundering propensities which he attributed to the government. It was indeed difficult to explain the reversal of the previous refusal of surrender except on the supposition that redress was due to repentance. It now appears that Lord Derby adheres to his former opinion that a surrendered prisoner can only be tried for the extradition crime. It is only because he has heard that Lawrence has not been prosecuted except on the original charge that he has resolved to revive the practice of extradition. It is not, he says, his business to anticipate irregularities, or to complain of the American government for making a claim which it has not actually enforced.
The government was wrong in seeking to limit the practice of extradition, and it ought, if necessary, to have obtained from Parliament extended powers of surrender. Its present position is still less defensible, though a practical abuse has been temporarily corrected. When it was known that Lawrence might perhaps be prosecuted on additional charges, Lord Derby was not bound to take notice of a contingency which had not occurred. He might have assumed that the American government would adopt his own interpretation of its rights and duties, until Mr. Fish had formally denied the claim of surrendered prisoners to immunity. The American contention was equivalent to the commission of an act which the English government considered wrongful. The accident that indictments were afterwards preferred or not preferred against Lawrence had no bearing on the controversy. Lord Derby has now ascertained that Lawrence has been tried only on the extradition charge, but he is not aware whether he was convicted or acquitted. If he has, in fact, been found guilty and sentenced, his exemption from ulterior liability is fully explained. A judge of the Queen's Bench division lately said that a writ of prohibition cannot issue quia timet before the judge of the other court has assumed jurisdiction. Lord Derby at first refused to surrender quia timuit, but he never adopted Justice Mellor's reasonable doctrine that it is not necessary to guard against imaginary harm. The president and his secretary of state will learn, not without astonishment, that extradition will continue for the present in direct violation of the principles which are still maintained by the English government. American diplomatists are for the most part both susceptible and energetic, and it may be doubted whether Lord Derby's official statement will not be resented as readily as a direct refusal of extradition. The opposition at home, conscious of renewed harmony and vigor, will scarcely fail to note another ministerial miscarriage. It is indeed not unlikely that Mr. Gladstone's government would have adopted the same course, for the Extradition Act gave effect to Liberal suspicions and jealousies; but one of the numerous merits of constitutional government is that the party in power is held responsible for all defects either in the law or in national policy.
If both governments would discuss without passion or prejudice the terms of a new treaty, there ought to be no difficulty in providing for the pursuit of ordinary criminals and for the security of the rapidly diminishing class of alleged political offenders. The only flaw in the American argument was that the treaty, according to the widest interpretation, made no exception in favor of political refugees, whom nevertheless the government of the United States would assuredly never surrender. The question has become less important since the days when Mr. Mill exerted himself in the committee for the protection of fugitives from despotic rule. Except Spain, and perhaps Russia, no European state is now in the habit of maintaining abroad a class of political exiles and conspirators. French Communist refugees must be dying out as successive amnesties reduce their numbers. The Americans, to their infinite credit, never even began, after the peace, the persecution of Confederates whom they had incessantly denounced and threatened during the continuance of the Civil War. It would be easy to agree in an extradition treaty that either government should have a right to refuse extradition on the certificate of the foreign minister that he considered the surrender, for special reasons, inexpedient. It would be understood that his object was to guard against the abuse of the treaty for political purposes. All ordinary criminals ought to be surrendered with the most cheerful facility. American swindlers are not guests so welcome in England that they ought to be refused to the reclamations of the victims whom they have plundered at home. Although Mr. Cross's opinion on all questions connected with criminal jurisprudence is entitled to respect, it is difficult to understand his reasons for wishing to afford protection to a foreigner against whom there is a primâ facie case of guilt. If the alleged forger has also indulged in embezzlement or burglary, he acquires no additional claim to the good offices of the country to which he has escaped. In the earlier part of the correspondence Lord Derby appeared not to share the jealous solicitude of his colleague. There had been reason to hope, when he assented to the surrender of Winslow, that he had reverted to his first opinion.