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THE EXTRADITION TREATY.
The following able and learned letter by the distinguished American jurist, the Hon. William Beach Lawrence, appears in a recent number of the Albany Law Journal. The editor of that journal says :—“The article upon the Extradition Treaty which appears in this number of the Albany Law Journal is probably the ablest contribution to the department of International Law that the discussion resultant upon the Winslow Extradition Case has brought forth. The argument of Mr. Lawrence fully covers the matter, and it is fair and candid in respect to the position taken by all the interested parties. It is well worthy the attention it will unquestionably receive on both sides of the Atlantic from all interested in the jurisprudence which governs the intercourse of nations.”
“My Dear Sir,-I had nearly completed a chapter on Extradition for the fourth volume of my 'Commentaire sur le Droit International,' etc., when I learned that a question had been raised by the United States as to the interpretation of the tenth, or Extradition article of the treaty of August 9th, 1842, between the United States and Great Britain, being the earliest convention on that subject now in existence, to which either of these countries is a party.
“By this article the two parties agree to deliver up to justice all persons charged with one of the crimes enumerated in the article, viz., 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, and who should seek an asylum, or should be found within the territories of the other. But it is provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed, and it gives power, jurisdiction, and authority to the respective judges and other magistrates of the two Governments, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he be brought before such judges or other magistrates respectively, to the end that the evidence of criminality may be heard and considered ; and it further prescribes, as a condition precedent to any surrender, that if on such hearing the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.
“ It is now contended by the United States that, although the requisition is for a specific charge, and though the evidence applies only to that charge, and would be relevant to no other, if such person be surrendered, he may, upon being brought within the jurisdiction of the party demanding the surrender, be tried not merely for the offence for which he has been demanded, and to which the evidence, on which the extradition was granted, was alone applicable, but for any other crime or offence, whether it be of the same class as that charged or of another description of crime or offence included in the treaty, or even for an offence to which the treaty in no matter refers.
“A demand of extradition for forgery of one Winslow having been made in February 1876, by the Government of the United States on that of England, and the latter, induced by the fact that measures had been taken to try for other offene -s one Lawre'ice, who had been previously surrendered on a similar charge, and that the right to do so was claimed by the United States, having declined to make the surrender, without an assurance that Winslow would not be tried for any other than the particular offence to which the proceedings related, the President, by his message of 20th June 1876, submitted to Congress 'to determine whether the article of the treaty (of 9th August 1842) relating to extradition is to be any longer regarded as obligatory on the Government of the United States, or as forming part of the supreme law of the land.”
“ The view taken by the United States being, as I couceived, not only at variance with the text of the treaty as construed by the recognized rules of interpretation and the laws of both countries passed to give effect to treaties of extradition, but the assertion of a claim to convert a concession made for a specific case, and with proper safeguards against abuse, to an unlimited and undefined criminal jurisdiction over every person extradited from a foreign State under whatsoever pretext, I deemed it my duty to defer the publication of my work till I could have an opportunity of correcting my conclusions by the study of the notes of the eminent statesınen by whom the controversy between the two countries was being conducted.
“ This I have been enabled to do, not only by an examination of the papers laid before Congress in the case of Winslow, but in the more extensive documents submitted to Parliament, including the Earl of Derby's note to Mr. Hoffman of 30th June.
“The British Government meets the issue tendered by the United States. The essential principles of extradition, as presented by England, are that a person can be tried for no offence except the one for which he is surrendered. This is the proper construction of the treaty of 1842. Her Majesty's Government thinks that the Act of 1870 is important; but, without it, it would maintain the same position. The Government maintains the right of asylum until criminality, according to the law of England, is shown.
“The meaning of the Article X. of the treaty of 1842 obviously is,' says Lord Derby, '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 evi
dence discloses facts which would amount to that crime according to the law of the surrendering country.'
“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 primâ facie case of forgery according to British law having been established, he were surrendered, and were afterward to be triel, convicted, and punished for that which might be arson by foreign law, but is not by the law of this country, he wall be convicted, and punished for the very offence for which his surrender had been in the first instance refused.
“The circumstances alleged to constitute any one of the offences specified in the treaty may be such as to show the close connection of political considerations with the offence charged, and the surrendering country, which must be the judge of whether the offence is or is not political, must have an opportunity of exercising this judgment by the facts of the case being presented to it.
Her Majesty's Government do undoubtedly and unreservedly * maintain that the Act of 1870 imposes no condition new in substance upon the treaty of 1812, 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 offences, implies, as plainly as if it were expressed in distinct words, that, in respect of the offence or offences laid to his charge, and such offence or offences only, is the right of asylum 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' (Parliamentary Papers, North America, No. 2, 1876; further correspondence respecting extradition, page 19).
" In order to enter intelligently on the examination of the controversy, it is proper to disabuse the public mind of the erroneous impressions which exist as to the nature and character of Extradition Treaties, and the extent to which they enter into the administration of criminal justice.
“The surrender by a country of its citizens, or even of foreigners, who have sought a refuge in it, relying on the right of asyluma right which is an inviolable attribute of independent sovereigntyfinds no place in that common law which both Englishmen and Americans have ever relied on as a security for life, liberty, and property.
“How far such a surrender is consistent with Magna Charta, or the bill of rights, as incorporated into the organic laws of all the States of the Union, which declare in terms, more or less precise, that no
member of the State can be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof unless by the law of the land or by the judgment of his peers,' or with the Constitution of the United States, which was intended to protect, certainly in all cases of federal cognizance, all persons within our jurisdiction from being held to answer for a capital, or otherwise infamous crime, without the presentment or indictment of a grand jury, or deprived of life, liberty, and property without due progress of law, and which professes to secure in all criminal prosecutions a speedy and public trial by an impartial jury,' is a matter which it is not my intention to discuss in this place.
“The unconstitutionality of any treaty, by which an American citizen could be delivered up as a fugitive from justice to the criminal jurisdiction of a foreign power, was maintained in the discussions which followed the single case, so disgraceful to our annals, in which it was pretended to give effect to the treaty of 1794. The impossibility, consistently with the Constitution, of subjecting American citizens to trial before a Court of which even a portion of the judges were foreigners, and not amenable to impeachment here, was made the ground of the refusal by President Monroe in 1818, subsequently repeated in 1824, to unite with England in the institution of mixed Courts in furtherance of the suppression of the African slave-trade.
"Waiving, however, the examination of these general propositions, which strike at the root of the power of extradition, whether by the spontaneous concession of a State or by treaty, there is another preliminary remark proper here to be made, and which is the more readily introduced in this place, as it disposes of the array of decisions of municipal tribunals, adduced by the American Secretary of State, as precedents for that construction of the treaty for which he contends. Extradition Treaties are international arrangements, and, like all other matters between States, are the subjects of diplomatic and not of judicial interpretation. Even the provisions in the Constitution of the United States declaring treaties to have the force of law, and which brings them within judicial cognizance, can apply only to their internal operation, and cannot affect foreign powers, unless indeed they contravene the Constitution, in which case, as was contended by Mr. Marcy on the occasion of the claim by the French Consul, founded on the treaty of 1852, not to be obliged to appear in Court as a witness in a criminal case, is the treaty void (Lawrence's · Wheaton, 1863, p. 432)
“ That the extent to which Extradition Treaties apply is a question to be settled by the political department of the Government, was indeed the view of those tribunals on whose decisions Mr. Fish would seem to rely for his construction of the treaty. In Caldwell's case, Benedict, J., says: The prisoner was brought within the jurisdiction of the United States by virtue of a warrant
of the executive authority of a foreign Government, upon the requisition of the Executive department of the Government of the United States, and while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitute a good cause of complaint between the two Governments, such complaints do not form a proper subject of investigation in the Courts, however much those tribunals might regret that they should have been permitted to arise. To hold otherwise would, in a case like the present, put the Government on trial for its dealings with a foreign power' (United States v. Caldwell, Blatchford's .Circuit Court Reports,' vol. viii. p. 133).
"In the case of Adriance v. Lagrave, in the Court of Appeals of New York, it was said: “The right of exemption from prosecution is based upon the faith of the Government, which is necessarily uncertain, and is a political and not a judicial question. Congress doubtless has power to pass an Act similar to the English Act referred to (Act of 1870), as the whole subject of extradition is confided to the Federal Government. It has exercised this power by passing an Act to protect the fugitive criminals from lawless violence (15 U. S. Stat. at Large, 377, $ 1). That these provisions ought to be extended to protection from other prosecutions or detention, I do not doubt, but until this is done by the law-making power, by treaty or statutes, we feel constrained to hold that the Courts cannot interfere’ (Adriance v. Lagrave, New York Reports, vol. lix. p. 110).
"And, in the case of Lawrence, on which was based the refusal to surrender the prisoner referred to in the President's message, without discussing some of the scarcely tenable reasonings of the. Cout, I deem it sufficient to cite the paragraph with which the judge concludes : · If an agreement exists between the Governments of the United States and of Great Britain, such as is set forth in the plea, the performance thereof is within the power of the Government by reason of its legal control over the prosecuting officer. And all that need be said here is that such an agreement can avail nothing to a defendant setting it up by way of plea to the jurisdiction of the Court before which this trial is moved by the Government' (Parliamentary Papers, North America No. 1, 1876, * Correspondence respecting Extradition,' p. 77). The Court, by overruling the demurrer, only decided that the defence under the treaty was a matter for the consideration of the Government, whose duty it was to see the fulfilment of the treaty, and which the extraditing Government, not the individual, could exact. The French decisions are the same, as will appear in the sequel.
It is not a little remarkable that this last passage, which we take from the Parliamentary Papers, is omitted in the report of the opinion of Judge Benedict as communicated to Congress. Sir Edward Thornton, in transmitting it, says: “The judge finally throws the responsibility upon the Government of the United States' (ib. p. 72).