« SebelumnyaLanjutkan »
may be, I think it is plain already that the Act of 6 and 7 Vict. c. 76, passed with the intent to carry into effect the Xth Article of the Treaty of Washington, attaches conditions to the surrender of the fugitives not provided by the Treaty itself, and has thus far, in one very strong case, defeated its operation.
The Hon. A. P. Upshur.
(Inclosure 1.)-The Earl of Aberdeen to Mr. Everett.
Foreign Office, December 2, 1843. On the 14th ultimo, the Undersigned, Her Britannic Majesty's Principal Secretary of State for Foreign Affairs, had the honor to transmit to Mr. Everett, Envoy Extraordinary and Minister Plenipotentiary of the United States of America at this Court, an account of the circumstances which led to the discharge from custody of an individual, named Nathaniel Britton, alias Clinton, charged with forgery in The United States, and for whose surrender to the American Government application had been made by Mr. Everett.
With reference to the same case, the Undersigned has now the honour to lay before Mr. Everett the copy of a letter which the Undersigned has received from the Home Department, covering a copy of a case, which, by the directions of the Secretary of State for that department, has been submitted to the Attorney and SolicitorGeneral, for their opinion respecting the construction of certain provisions of the Act 6 and 7 Viet. c. 76, for giving effect to the Xth Article of the Treaty concluded at Washington on the 9th of August, 1842, between Her Majesty and the United States of America.
The Undersigned, in transmitting to Mr. Everett this document, containing the opinion required, avails himself of this opportunity to express his hope that that opinion, in clearing away any doubts which may have arisen as to the quality and extent of the powers possessed by the magistracy of Great Britain for the apprehension of offenders claimed on the part of The United States under the Treaty of Washington, will contribute to facilitate the execution of that Treaty on the part of Great Britain, and thereby to fulfil the wishes and intentions of Her Majesty's Government.
E. Everett, Esq.
The Undersigned, &c.
(Inclosure 2.)-Mr. Phillips to Mr. Addington.
SIR, Whitehall, November 27, 1843. I AM directed by Secretary Sir James Graham to transmit to you the inclosed copy of a case which has been laid before the Attorney and Solicitor-General, with their opinion thereon, respecting the construction of certain provisions of the Act 6 and 7 Vict. c. 76, for
giving effect to a Treaty between Her Majesty and the United States
J. M. PHILLIPS.
(Inclosure 3.)-Case respecting the construction of certain provisions of the Act of 6 and 7, Vict., c. 76, for giving effect to a Treaty between Her Majesty and the United States of America, for the apprehension of certain offenders.
[Copy of the Act is left herewith.]
SECRETARY SIR JAMES GRAHAM has been pleased to transmit to the Solicitor of the Treasury a letter from Mr. Hall, chief magistrate of police, of which the following is a copy, with directions to submit the same to the Attorney and Solicitor-General:
Police Court, Bow Street, October 18, 1843. A PERSON of the name of Nathaniel Britton was recently apprehended and brought before my colleague, Mr. Jardine, at this Court. upon a charge of forgery in The United States, in order to be dealt with pursuant to the 6th and 7th Vict. c. 76, passed in the last session of Parliament, "for giving effect to a Treaty between Her Majesty and the United States of America, for the apprehension of
The accused, through the mistake of some one acting in behalf of the Government of The United States, had been improperly apprehended, no warrant having been previously required from or issued by a magistrate in this country, and he was not detained by Mr. Jardine, who thought the evidence tendered to him inadmissible in law.
The metropolitan police magistrates and also justices of the peace throughout England, will, no doubt, frequently be required to give effect to this Act, and it is very important that their decision, regarding its construction should not be conflicting. I beg to submit that the opinion of the law officers of the Crown should be taken upon the following points, on which doubts have arisen in the minds of some of the police magistrates and justices of the peace:
1st. To enable a magistrate to issue his warrant under the Acts should it not appear that the offence charged against the party sought to be apprehended here, is also an offence against the laws of this country?-the words in the concluding part of the first clause of the Act being: "and upon such evidence as, according to the laws of that part of Her Majesty's dominions, would justify the apprehension
and committal for trial of the person so accused, if the crime of which he or she shall be so accused had been there committed."
2nd. Are original depositions admissible, as well as copies thereof, under the second section of the Act, the said Act being a penal one?
3rd. If original depositions be admissible, should it not be certified, under the hand of the person who issued the warrant in America, that upon such depositions he granted his warrant?
4th. If copies are alone receivable, is it imperative on a magistrate to require the certificate of the judge or magistrate who granted the warrant in America, that they are copies of the depositions upon which he issued his warrant, and should they be also attested upon the oath of the party producing them, that they are correct copies of the originals?
5th. Is the "original warrant," mentioned in the 2nd clause, to be taken to mean "the warrant issued by the judge or magistrate in America," and must such original warrant be produced before a magistrate in America, that he has issued, upon such depositions, his warrant, be sufficient? (In the Act for carrying out the Convention between Her Majesty and the King of the French, the original warrant of arrest is required to be produced).
6th. Should a magistrate in England, upon having admissible depositions before him, require evidence that the offence charged is an offence against the law of America, or is he bound, under the words received in evidence of the criminality of the person so apprehended, "to act upon the depositions as proof that the facts therein set forth do constitute an offence according to that law?"
7th. Do the words "so apprehended," in the 2nd section, exclude the reception of copies of depositions before the apprehension of the accused, under the warrant of a magistrate, or may those words be read, "so to be apprehended"?
The Legislature can scarcely be supposed to have meant that a magistrate should not act upon depositions until the accused shall Lave been actually apprehended under his warrant.
Under the Act for giving effect to the Convention with France, the word used in the 2nd section is "apprehended.”
THOMAS S. HALL.
The Attorney and Solicitor-General will be pleased to advise upon the several points stated in Mr. Hall's letter.
1st. The offences for which a party may be apprehended under this Act are distinctly specified in the 1st section of it. They are offences known and recognized by the criminal law of this country, Ld the magistrate should issue his warrant upon the same description of evidence as he would require in case the crime had been alleged o be committed in this country. [1844-45.]
2nd. We are of opinion that papers or documents professing to be or proved to be the original depositions are not admissible under the 2nd section of the Act, without the certificate of the magistrate who issued the warrant.
3rd. We think they ought to be connected with the warrant, as copies ought to be, by a certificate from the party issuing it.
4th. We think copies are not admissible unless certified to be so under the hand of the person issuing the warrant, and attested, by the oath of the party producing them, that they are true copies.
5th. There can be no doubt that the words "original warrant,” in the 2nd section, mean the warrant issued in America; but, in order to justify the apprehension of an offender under this Act, it does not appear to us to be necessary that any warrant, by the authorities in America, should be produced here; such production is not required by the 1st section of the Act, which gives the justices here the power to apprehend. The 2nd section applies merely to the evidence of the guilt; and if the depositions are offered in evidence before a magistrate here, then the certificate of the magistrate abroad, who took the depositions and issued his warrant upon them, becomes necessary to render them admissible.
6th. We think a magistrate may act upon the depositions, &c., if they would constitute an offence here, without proof that the offence charged is an offence in the foreign country.
7th. We think that the depositions may be received in evidence before the apprehension of the party.
Temple, November 24, 1843.
INSTRUCTIONS to Mr. Ouseley, Her Majesty's Minister at Buenos Ayres, for his guidance in the Joint Intervention by England and France, between Buenos Ayres and Monte Video.-February, November, 1845.*
No. 1.-The Earl of Aberdeen to Mr. Ouseley.
Foreign Office, February 20, 1845. You are already aware that the first and most important duty which will present itself to you upon your arrival at your post, will be the endeavour to effect a cessation of the hostilities which have been so long carried on by General Rosas against the city of Monte Video, and to restore and secure peace throughout the State of the Uruguay.
You are also aware, that at the close of last year the Government of Brazil, in its character of a neighbouring Power, and being a * Presented to Parliament, 1846.
party to the Convention of August, 1828,* which declared the independence of Monte Video, as well as deeply interested in the restoration of tranquillity on its own frontier, urged upon the Cabinets of London and Paris, through the Viscount d'Abrantes, the necessity of prompt and effective interference in order to put an end to the war; and you will have learned by the personal communication which you have lately had with the Ministers of the King of the French, that the determination of Her Majesty's Government to accomplish this object is shared by the Government of France, and that it is the intention of the 2 countries to unite their influence, and, if need be, their force for that purpose.
I will now proceed to give you some instructions by which to guide your conduct in the discharge of the important duty before you. It is not probable that the new representative of France who is about to be accredited to the Government of Buenos Ayres will have reached that city at the time of your arrival; and although it would be improper to attempt any coercive measures, except in strict concert with your French colleague, there seems no reason why you should not try the effect of amicable representations without any delay.
Your first steps, therefore, will have to be taken singly; and it is the wish of Her Majesty's Government that they should be directed to set before General Rosas, in candid and friendly terms, the danger in which his refusal to listen to former representations from Her Majesty's Government has placed him, and to induce him at once, and of his own act, to desist from taking any further part in the operations against Monte Video.
You will therefore lose no time in entering into communication with General Rosas, and with his Ministers. You will state that the spirit in which Her Majesty's Government address themselves to the Government of Buenos Ayres is not one of hostility to that State, or to the influential individual who is at the head of it; on the contrary, that the advice which you, are instructed to offer is conceived in friendship, and in a true regard for the interests of the Republic. It can scarcely be necessary to assure the Government of Buenos Ayres that we have no selfish or exclusive objects in view. General Rosas will himself fully comprehend and acknowledge the true character of ar proceeding. You will say, that, in exhorting General Rosas to desist from the contest to which he has made himself a party, Her Majesty's Government disclaim all intention of interfering in any manner with the independence of Buenos Ayres; they do not deny the right of that State to wage war like any other independent Power, provided always that the war be conducted according to the law of nations and the practice of civilised men. But the war in which the
* Vol. XV. Page 935.