Edwards Pierrepont to Hamilton Fish, July 19, 1876

No. 153. Mr. Pierrepont to Mr. Fish.

Sir: * * * * * * *

I believe you are familiar with the case of Burley. On the 25th of February, 1865, Earl Russell, in his dispatch to Mr. Burnley, writes as follows:

Foreign Office, February 25, 1865.

Sir: With reference to the case of Mr. Bennet Burley, who has been given over by the Canadian authorities to the United States Government, under the extradition-treaty, on a charge of robbery, I transmit to you herewith a copy of a letter from Dalglish, M. P., forwarding, at the request of Mr. Burley’s father, a statement relative to his son, from which it would seem that fears are entertained that Bennet Burley will not be tried before the United States courts on a charge of theft, but on a charge of piracy, and Mr. Burley, senior, as a British subject, consequently asks for the good offices of Her Majesty’s government on behalf of his son, in so far as that he may not be tried on any other charge than that on which the claim was made for his extradition.

I have to state to you that, having considered this application in communication with the proper law advisers of the Crown, Her Majesty’s government are of opinion that if the United States Government, having obtained the extradition of Burley on the charge of robbery, do not put him on his trial upon this charge, but upon another, viz, piracy, (which if it had been made before the Canadian authorities they might have held not sufficiently established to warrant his extradition,) this would be a breach of good faith against which Her Majesty’s government might justly remonstrate. If, however, the United States Government does bona fide put Burley on his trial for the offense in respect of which he was given up, it seems to Her Majesty’s government that it would be difficult to question the right of that government to put him upon his trial for piracy also, or any other offense which he may be accused of having committed within their territory, whether such offense was or was not a ground of extradition, or even within the treaty.

Accordingly Her Majesty’s government can only so far comply with the application of Mr. Burley, senior, as to instruct you to protest against any attempt to change the ground of accusation upon which Burley was surrendered in pursuance of the treaty.

I am, &c.,

RUSSELL.

This shows clearly the view which the British government entertained of the treaty when Earl Russell wrote the dispatch, and it is not easy to see how Lord Derby can defend the new position which is now taken.

I herewith inclose a copy of the correspondence relating to extradition presented to the House of Commons, marked “No. 3” and “No. 4.”

I have, &c.,

Report of a committee of the honorable the privy council, approved by his excellency the governor-general on the 8th of February, 1871.

The committee of council have given their attentive consideration to the annexed report, dated 6th February, 1871, from the honorable the minister of justice, in reference to the petition of Richard Baker Caldwell, who was surrendered to the United States under the extradition treaty, on the charges of forgery and uttering forged paper, and they concur in the opinion given in the said report that the matter of this petition is one for the consideration of Her Majesty’s government, and accordingly recommend that it be transmitted by your excellency to the right honorable Her Majesty’s secretary of state for the colonies, so that such action may be had upon it as Her Majesty’s government may deem expedient.

Certified.