THE PROPOSED LAW ON EXTRADITION.
THE difficulties hitherto in the way of Extradition Treaties may be briefly summed up. The conflict of laws and judicial process in different countries has created confusion and complicated the practical working of the Treaties ; and there have been fears of the abuse of the procedure to obtain the surrender of political offenders. The last has been a difficulty almost peculiar to ourselves. Foreign governments and foreign nations have either no expectation of receiving political refugees, or no fear that these will be demanded of them, or they do not scruple to surrender political as well as other offenders. The conflict of laws and judicial process, however, has been a difficulty on both sides, with which the political difficulty has got curiously entangled. In France and most Continental countries an accused person is funda- mentally in a different position from an accused person in England. The authorities can deprive him more readily of liberty and detain him on slighter pretexts than with us. The rights of the community as represented by the State preponderate overwhelmingly over any individual right when the two are in collision. Hence Continental powers have little hesitation in surrendering one another's accused, or "criminals," as the phrase too readily becomes. They are quite content with knowing that their neighbours' policemen want a man on some specified charge ; if the man can be identified, the foreign country prosecuting may have him, and welcome. A similar indifference is impossible here, and the result is a certain awkwardness on our part in joining with this " comity of justice." There is another cause of differ- ence in the control of aliens residing in their territory which foreign Governments usually possess. The principal European Administrations may signify to any alien their wish that he should quit their borders, and the alien must go but the residence of aliens in England is not dependent on executive caprice. Perhaps, if a power deported largely the subjects of a foreign State, its acts could be com- plained of under some favoured-nation clause in a com- mercial treaty, but this exception to an administration's caprice manifestly could not apply to a case where extra- dition was sought by the foreign government which would have the right to complain. The difference of process, again, while originating in the difference of principle, aggravates the effect. It is quite natural that a system of law respecting individual right should develop a judicial process by which, before an accused is even sent for trial, a magistrate, or rather judge, should confront him with the witnesses by whom he is to be condemned. It is equally natural that a Government accustomed to freedom in preventive arrests and detentions should regard this preliminary inquiry as superfluous and vexatious. No doubt, too, when an offence is committed in one country and the accused is in another, there is a real diffi- culty in sending witnesses after him so that there should be a preliminary inquiry on the model established in England. The difficulty may sometimes be no greater than what takes place occasionally within a country ; in some of the late Fenian inquiries there was a considerable moving-about of witnesses, and Paris is as near London as Cornwall or North- umberland ; but the distances are, nevertheless, very much greater in most extradition cases, which must besides be liable to peculiar delays. Is it to be wondered at that foreign Governments in these circumstances should say very hard things of a system which seemed, according to their habits and prepossessions, expressly contrived to prevent extradition ? Very naturally, knowing our distrust of being asked to sur- render political offenders, they ascribed all the obstacles we raised up to that motive ; and this was particularly the case when the French Government in an offended tone denounced two years ago the previous Extradition arrangements.
The appointment last spring of the Select Committee which has just reported,—a very strong Committee,—is one of the indirect consequences of this French denunciation. Without any lengthened report, this Committee. has made suggestions for a new law, which, we trust, will put matters on a right footing. The difficulty as to political offenders is so far got over by the discovery that foreign Governments,—especially France,—are willing to exclude expressly not only crimes which are purely political, but hermaphrodite offences,—crimes like the explosion at Clerkenwell, which might be described and proved without reference to politics, but yet have a political colour. There is an express clause to this effect in almost all the French Treaties of Extradition, though curiously enough not in the Treaty with England ; but a Circular of the French Minister of Justice, issued in 1841, which has never been abrogated, and is binding as law in France, leaves no room for uncertainty as to the action of French magis- trates. They are to sanction no requisition of political offenders, and they are to surrender none when asked. The Committee have therefore no difficulty in recommend- ing the express exclusion of political offences from Extradition arrangements. " Assassination " is expressly stigmatized as not political in all circumstances, but to make sure that political offenders shall not be caught, it is also recommended that the surrendering government shall be sole judge of what it deems a political offence and what it deems assassination. A recom- mendation that prisoners are only to be tried for the offences charged in the warrant for extradition, also secures that political offenders will not be got on a trumped-up case and then tried for something else. Of course, such provisions would not prevent an extreme abase of law process by forged depositions and perjury, enabling a political offender to be apprehended and convicted on the false charge of a non- political offence ; but is it reasonable to form apprehensions so extravagant, even when the possible offender has so many facilities for this crime as an irresponsible administration possesses? The ordinary honesty of humanity may be trusted to prevent the combination of official criminals,—magistrates, policemen, Ministers of State,—which would be necessary for such an abuse. An attempt of this sort, if discovered and not redressed, would require not only the rupture of the treaty, but a declaration of war by the offended govern- ment. In any case, however, the forms of extradition, if adapted to our laws, should make the success of the most audacious and clever attempt of this sort very doubtful.
In regard to those forms which constitute the other difficulty of extradition, the Committee " give reason " altogether to our system. They repudiate the favourite theory of France,—with which M. Drouyn de Lhuys started in his despatch of 1866, denouncing the Treaty with England,—the theory that accused persons should be given up by one country to its neighbour, on proof that the person brought up is the person described in the warrant. Why the Committee do so they do not say, but it is not
difficult to sup reasons. What foreign lawyers and jurists glory in, hones y enough we believe, as a furtherance to the pursuit of crime, is really a mark of barbarism, because exposing individuals to the caprice of power. We affirm, on the contrary, that no one's liberty under our laws shall be abridged, unless on cause shown. There may be an arrest in order to an inquiry, but the inquiry must be prompt, and show from the first the likelihood that a prima facie case will be made out, so as to justify detention for trial. Foreign Governments might say, " Very well ; give us up the accused when we show sufficient foundation for a preliminary inquiry, and let that inquiry be made by us ;" but they do not say this. They have no preliminary inquiry as we understand it, and even if they had, it would still be a question whether in jus- tice to individuals, the loss and suffering by removal from one country to another being very great, the preliminary inquiry should not in all cases take place where an accused person is found. The Committee then insist on evidence sufficient to justify the committal of a prisoner for trial, but they also approve the temporary Act of last year, which got over the main French objections to our system by sanctioning the production of depositions in place of the witnesses themselves. So far, it appears, the temporary Act has worked well enough, and it must be understood that the depositions are not equivalent to witnesses who are cross-examined in open court. The magistrate must appreciate, according to the usual rules, the value of the documents before him, and everything suspicious about the depositions will tell. The principle of our system is also recognized in the recommendation that an accused shall have fifteen days after the magistrate's order for his surrender in which he may sue out a writ of Habeas Corpus. This will effectually prevent any Lamirande abductions. These difficulties surmounted, another great improvement is practic- able. It is expedient to enlarge the list of offences, but this could not be thought of when Extradition treaties would hardly work. Now, we may include such offences as em- bezzlement, which are too much facilitated by the quickness of escape incidental to our improved communications. Ex- tradition arrangements should include every serious offence.
While these are the principles on which it is recommended we should give and take in matters of Extradition, the machinery to carry them out is worthy of notice. There was a consensus of opinion that separate treaties and separate acts to carry out each engagement would not answer. A negotia- tion with the American Government had broken down because of a stipulation which made the sanction of a treaty depen- dent on the Parliament of one of the powers, and in any case the present system was uncertain and difficult to work with. A Treaty with Denmark was assented to, and one in the same terms with Prussia rejected, a friendly State thus receiving some just cause of offence. A general Act was re- quired, yet it was obviously contrary to constitutional rule to authorize the Sovereign to make a certain class of treaties. So strong was this objection that Mr. Hammond, the Foreign Under-Secretary, contemplated a general Act, which would not have required the supplement of regular treaties at all. Foreign powers would simply have been allowed to take ad- vantage of it on engaging in any way to reciprocate, and so long as they did so. In opposition to Mr. Hammond, Sir 'Thomas Henry, who, as Bow Street Magistrate, has had a good deal to do with the question, and has come in contact with foreign Governments, insisted that Treaties would be needed. Foreign Governments, he said, would think it derogatory to "come in," as the business with them was an affair of State. The difficulty is got over by the recommen- dation of an Act which will permit extradition on the demand of a foreign government "with which arrangements have been made for the extradition of persons accused of crimes." It is left optional to the Executive whether the arrangement shall be by treaty or otherwise. The clause will have this further advantage, that the crimes for which extradition is admitted need not be precisely the same as between the countries. We define in what cases we shall ourselves allow extradition, and the execu- tive will determine whether the engagement offered in return by a foreign government, describing crimes in its own phrase- ology, is sufficiently reciprocal. The general Act is to be applied to any particular case by an Order of Council, which shall be laid within six weeks before Parliament, and every arrangement must be terminable on moderate notice. It will not fail to be observed that this is an application to extra- dition of a new process in Parliamentary government, which is beginning to be appreciated, and which those who desire strong rule must hope to see largely extended. The Parliament legis- lates in principle and defines the limits of administration, but the executive legislates in detail, the reversal of the rules, and not the rules themselves, requiring special votes or enactments.
There are still some difficulties in the question. The recommendations of the Committee only apply to persons- accused, but foreign Governments pertinaciously require per- sons convicted as well. There should be no objection in the latter case, when conviction had followed a trial ; but more than one State allows conviction par contumace, and we are asked to give them up on production of this conviction. As contumacy is held proved where the accused cannot be found in his own country, this would mean in many cases the sur- render of accused persons without evidence. To evade our law of preliminary inquiry, foreign Governments might con- demn par contumace, and then come and find their man. Sir Thomas Henry, it is true, explained at great length that those convictedpar contumace would always be tried again ; but in his sketch of an extradition bill he makes no distinction between this kind of conviction and conviction upon trial, although provid- ing that convicted persons shall be surrendered on proof of the fact. This point must not be let slip, and safety lies in surrendering accused persons only, or if so-called convicted persons, then only those who are assured of a trial, the pre- liminary inquiry required being in all cases the same. Another extradition difficulty is the foreign axiom about "nationals." Foreign Governments are disposed to refuse the surrender of their own subjects when accused of committing crimes in another country. There is some punctilio about it, nations holding that their subjects are entitled to justice at home ; but the injustice and want of " comity " in the rule are obvious,. and are very strange in people who boast their comity in these• matters so much. Unless provision is made to try subjects for crimes committed abroad, the effect is to exempt formally from punishment a certain class of criminals, to provide one safe refuge to which they may go ; and even where provision is made, the trial can never be so effective as it would be on the spot. There is besides something indecent in setting up jurisdiction over crimes committed abroad. The sufferer by a crime is the community among whom it is committed, and the foreign State sheltering the accused can have so little real interest in punishing him that the pretence to do so raises the suspicion of other motives. The particular foreign State which has set up the axiom is France, the power with which. this country most requires a Treaty of Extradition ; and some pressure should here be put upon it. If Frenchmen may rob Englishmen or commit any crimes they please in England, and Englishmen may do the like in France, subject only to trial in the countries of their origin, our Extradition Treaties will plainly lose much of their value. It will not be a good beginning to licence each other's rogues to prey in our respective territories.
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