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(Inclosure 6.)-Mr. Jardine to Mr. Sutton.
Police Court, Bow Street, October 12, 1843. I HAVE to acknowledge the receipt of your letter of the 9th instant, desiring me to transmit to you a report of the circumstances which led to the discharge at the Bow Street Police Court of Nathaniel Britton, who was charged with forgery in America, and for whose extradition to the American Government a warrant had been issued; and in accordance with your desire, I now beg leave to transmit to you my report,
Nathaniel Britton was brought to the police court in Bow Street on the 6th instant, in the custody of an inspector of police; and an application was made to me there, in the presence of the prisoner, for a warrant to commit him to jail under the statute 6 and 7 Vict., c. 76, which I declined to issue. I did not discharge him from custody, or in any respect interfere with the arrest which had been previously made, and the authority for which was not discussed or stated before me.
The warrant of the Secretary of State, originating the jurisdiction of inferior magistrates, appeared to me to be in every respect regular; but I declined to issue a warrant, because I thought the evidence of criminality tendered to me was inadmissable in point of law, and, consequently, that I had no authority to commit the prisoner. The only evidence of criminality produced was a document purporting to be an original deposition taken before the Recorder of New York, and which though clearly not legal evidence by the common law, was offered as a special means of proof authorized by the 2nd section of the statute. I thought that the deposition was not receivable in evidence under that section, for the following reasons:
In the first place, the 2nd section declares that copies of depositions only may be received in evidence, whereas the document tendered to me was an original deposition. Whether an original document, which is in itself not legal evidence, can be received in evidence by virtue of a statute which expressly authorizes the reception of a copy, is a doubtful question in our law, even with relation to civil proceedings. In 1796, the Court of King's Bench decided, in a settlement case, that the original document was evidence under such circumstances. (Rex versus Warley, 6 Term Reports, 554.) On the other hand, it was held by Lord Ellenborough, in 1809, in an action of replevin, that if any document, which itself is not evidence at common law, be made evidence by Act of Parliament, a copy must be produced, and the original is not made admissible evidence by implication, (Burdon versus Ricketts, 2 Campbell's Reports, 121.) Both the above cases related to civil actions, whereas the application to me was to enforce a penal law, directly affecting personal liberty; * Vol. XXXI. Page 1220.
and in such a proceeding I thought that a well-known principle in the construction of penal statutes applied, viz.: that where a penal statute introduces an exception to the general law, the words are to be taken strictly, and cannot be extended by implication. Although, there. fore, I did not entirely act upon this objection in declining to issue a warrant, I certainly considered it to be a serious difficulty.
The other objections to admitting the deposition tendered to me as legal evidence appeared to me to be quite conclusive. The documents which a magistrate is authorized, by the 2nd section of the statute, to receive in evidence are copies of depositions upon which the original warrant was granted, certified under the hand of the person issuing such warrant, and attested as true copies. There is some obscurity in the language of the statute in this respect, which does not sufficiently designate the person who is to give this certifi cate. It was contended, by the gentleman who attended professionally to support the application for a commitment, that the person intended was the Secretary of State, because the only warrant previously mentioned in the statute, to which the words " original warrant" could be referred, was the warrant of the Secretary of State originating the proceedings in this country. If this be the meaning of the statute, the deposition could not of course have been received in evidence, because it was not certified by the Secretary, Sir James Graham. But whoever may be the person required to certify by the statute it seems to me to be very clear that the Secretary of State is not intended by the above words, because he does not act, under the statute, upon depositions of witnesses, but solely upon the requisition of the American Minister. I conceive that the person issuing the original warrant must be understood to be the judge or magistrate in America to whom application is first made for the apprehension of the offender. If so, in order to authorize the reception of the depositions taken before him as legal evidence under the 2nd section, they must be expressly certified under his hand. The deposition tendered in evidence to me was not certified under the hand of the Recorder of New York, as the deposition upon which he had issued a warrant, nor indeed was there any proof given or tendered that any warrant had been issued by him or any other magistrate in America, nor that the deposition in question had been taken in support of an application for a warrant.
Entertaining, therefore, a strong opinion, founded upon the above reasons, that the deposition tendered to me in support of the application was not legal evidence, I declined to issue my warrant for the commitment of the prisoner to jail.
Upon referring to the date of the statute 6 and 7 Vict., c. 76, and of the deposition taken in America, it is clear that the provisions of the statute, authorizing the reception of depositions in evidence in
England, when certified in a proper manner, could not have been known to the Recorder of New York at the time of his transmission of the deposition taken by him. It is obvious, therefore, that the impediment which occurred in this particular case could not have been prevented, and that it is not likely to occur again, after the provisions of the statute have been promulgated in America. I have, &c.
The Hon. H. Manners Sutton.
(19.)-Mr. Everett to Mr. Upshur.
London, November 1, 1843. I TRANSMIT with this despatch a letter from the Foreign Office, informing me that Sir James Graham, acting under the advice of the law officers of the Crown, had felt himself obliged to decline issuing his warrant for the apprehension of Andrew Pollock, charged with fraudulently appropriating the moneys of the Bank of America, in New York. Pollock's surrender, as a fugitive from justice, had been applied for by me, at the instance of the Consul of The United States for this port. The ground of refusal is, that "embezzlement" is not one of the offences provided for by the Treaty of Washington. It may be proper to add, that it is not known where Pollock is; and that the surrender was applied for only in the hope that his place of concealment might be discovered. The Hon. A. P. Upshur.
(Inclosure 1.)-The Earl of Aberdeen to Mr. Everett.
Foreign Office, October 17, 1843. THE Undersigned, Her Majesty's Principal Secretary of State for Foreign Affairs, has the honour to acknowledge the receipt of the note which Mr. Everett, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, addressed to him in the month of September, requesting that a person named Andrew Pollock, charged with the fraudulent appropriation of moneys belonging to the Bank of America, and supposed to be at present either in England or Scotland, might be arrested and examined, with a view to his being surrendered to The United States Government, under the Xth Article of the Treaty of Washington.
The Undersigned has the honour to acquaint Mr. Everett, in reply, that he lost no time in communicating Mr. Everett's application to the Secretary of State for the Home Department, who has informed the Undersigned that, in the opinion of the law officers of the Crown, to whom Sir James Graham referred the papers, for the purpose of having a warrant prepared by them for his signature, the facts stated in the deposition which accompanied Mr. Everett's note do not constitute either of the crimes mentioned in the Act of the last session of Parliament, (6 and 7 Vict., c. 76,) which was passed for giving
effect to the Xth Article of the Treaty of Washington; and that Sir James Graham, as Secretary of State, has no authority to issue his
warrant in this case.
Under similar circumstances, if they were to occur in this country, the English Government would be precluded, according to the view of the case taken by the law officers, from obtaining the interposition of the American Government for the apprehension of the person so charged, if he should escape from this country to America.
The Undersigned has to express his regret, therefore, that Mr. Everett's request cannot be complied with.
E. Everett, Esq.
The Undersigned, &c.
(20.)-Mr. Upshur to Mr. Everett.
Department of State, Washington, November 14, 1843. WITH regard to the British Act of Parliament to carry into effect the Treaty of Washington, you will take the necessary steps to obtain through Lord Aberdeen the opinion of the law officers of the Crown as to the construction which is to be placed upon that Act; and if, in their opinion, the construction which was placed upon it in the case of Clinton be incorrect, and if, in other respects, the case be a suitable one for it, you may renew your application for his
E. Everett, Esq.
(21.)-Mr. Upshur to Mr. Everett.
A. P. UPSHUR.
Department of State, Washington, November 23, 1843.
THE reason assigned by the British Government for its declining to issue a warrant for the arrest of Andrew Pollock appears to be just, and is received as satisfactory.
E. Everett, Esq.
(22.)--Mr. Everett to Mr. Upshur.
A. P. UPSHUR.
London, December 2, 1843. I RECEIVED, at a late hour on the 2nd instant (Saturday), a note from the Foreign Office, transmitting a letter from the Home Department to Mr. Addington, Under Secretary of State for Foreign Affairs, accompanied with an opinion of the Attorney and Solicitor-General, on the construction of the Act to carry into effect the Xth Article of the Treaty of Washington, relative to the extradition of fugitives. I have barely had time to read it; but I understand it to hold that the originals of affidavits may be received here as competent evidence to authorize the surrender of fugitives demanded by The United States. The contrary doctrine was held by the Bow Street magistrate, before whom Clinton, alias Reed, was brought up, and on that ground he escaped. The opinion, however, seems to take for
granted that there must be, as a matter of course, a warrant granted
(23.)-Mr. Everett to Mr. Upshur.
London, January 2, 1844. In my despatch, No. 68, I alluded to a note, which I had received from Lord Aberdeen, of the 2nd of December, transmitting an opinion of the Attorney and Solicitor-General upon a case submitted to them by the Bow Street magistrate, relative to the construction of the Xth Article of the Treaty of Washington, by which provision is made for the extradition of fugitives from justice. I forward this note, with the opinion accompanying it, with this despatch. The case submitted to the Attorney and Solicitor-General was so drawn up as not to call their attention specifically to the ground on which the magistrate had proceeded, in refusing to order the arrest of Clinton, with a view to his extradition. But the opinion of the law officers seems to establish the insufficiency of that ground, viz.: that original affidavits could not be received in evidence. It requires, however, a mode of authentication which had not been observed in reference to the affidavit on which the application in the present case was founded.
By the steamer of the 1st of December, I received from Mr. J. R. Whiting, district attorney for the eity and county of New York, an exemplified copy of an indictment against Clinton, with a bench warrant for his arrest, to be used in support of a renewed application for his surrender. You-direct me, in your despatch No. 67, to be governed by circumstances as to making another application, and I am requested by the agent of the parties in interest in New York to confer with Messrs. Bush and Mullens, the solicitors intrusted with the management of the business in this country. They incline to think that an application, founded on the copy of the indictment and bench warrant, would not succeed, under the opinion of the Attorney and Solicitor-General, and have submitted a case on that point to counsel learned in the law. I have been awaiting the result, in order to assist me in making up my mind as to the course best to be pursued.
As soon as I can possess myself of the merits of the case, in its various bearings, I shall address Lord Aberdeen a note on the subject. Whatever the final result as to the extradition of Clinton