Wickham Hoffman to Edward Henry Stanley, March 8, 1876

Mr. Hoffman to Lord Derby.

My Lord: Referring to your note to General Schenck of February 29, upon the subject of the extradition of Winslow, in which you state that the secretary of state for the home department may come to the conclusion that he has no power to surrender the fugitive, even though the usual committal by the magistrate should take place, I have the honor to inform you that I have received a communication from my Government upon this subject. Mr. Fish states, not having then received a copy of your lordship’s note, but only a telegram from General Schenck, that he is at a loss to understand upon what ground the possible action of Her Majesty’s government, as foreshadowed in that communication, is based.

If it is founded on a desire to make the extradition treaty of 1842 between the United States and Great Britain subject to the extradition act of 1870, he is unable to find anything in that treaty which admits the right of either party to exact conditions beyond those expressed in the treaty. If, on the other hand, it is based, as I infer from your lordship’s note, upon the reported action of my Government in the Lawrence case, I am authorized by Mr. Fish to say that at the date of his dispatch Lawrence had not been arraigned for any other crime than the extradition crime, and that no representation had been made to my Government upon this subject. In your lordship’s note you refer to the clause of the act of 1870, which forbids the surrender of a fugitive criminal, unless provision is made by law, or by arrangement, that he shall be tried only for the extradition crime proved by the facts upon which the surrender is granted. But may I be permitted to call your lordship’s attention to the 27th section of the same act, (ch. 52; 33 and 34 Vict.,) repealing the former acts under which extradition had theretofore been accorded.

This section, probably suggested by the foreign office, excepts everything contained in the act inconsistent with the treaties referred to in the repealed acts, among which treaties is that with the United States. And I am enabled to call your lordship’s attention to a case in the court of the Queen’s Bench, ex parte Bouvier, in which it was argued by the attorney-general, in reference to this section, that the intention of Parliament was to make a general act which should apply to all cases, except where there was anything inconsistent with the treaties referred to, and that the provision limiting the crime for which the trial might be had, being inconsistent with the treaty, the condition so imposed did not apply to the treaty, and the lord chief-justice (Cockburn) further observed, “I rather hesitate to express a decided opinion as to the construction to be put upon the 27th section, although I see plainly what was the intention of the legislature; that is to say, it was intended, while getting rid of the statutes by which the treaties were confirmed, to save the existing treaties in their full integrity and force.” The “full integrity and force” of the treaty of extradition between the United States and Great Britain has been clearly shown and settled by an unbroken operation of nearly thirty years, during which time Great Britain has, at least upon one occasion, tried surrendered criminals for crimes other than those for which they had been surrendered, and has thus afforded a practical construction of the scope of the treaty, and of the powers and rights of both governments. I sincerely hope that Her Majesty’s government, upon a further consideration of this matter, will be able to hold, with that eminent jurist, the lord chief-justice, that the desire of the legislature to save the treaties in “their full integrity and force” has been effected, and that they will decide, as he states that he should have done, had it been necessary, “that this object has been accomplished.” I know that Her Majesty’s government is as anxious as we are that criminals should not escape the just punishment of their crimes by taking refuge on a foreign shore; and it would assuredly be a sad thing for the interest of both countries, and for that of humanity, if a treaty which has worked so well for nearly thirty-five years, to our mutual advantage and to the furtherance of justice, should now be permitted to fall to the ground, and great criminals, on both sides of the Atlantic, be thus enabled to escape “unwhipt of justice.”

I have, &c.,