Year

Letters from 1878

481 letters
Letter

John Welsh to It is the interest of every civilized government to aid in the apprehension and expulsion of evil-doers, who merely claim its hospitality to escape punishment. But it is not for the honor or interest of the Government of England to be made, unawares, instrumental in the pursuit and capture of fugitives from the resentment of absolute or irresponsible rulers. That such exist we know, and that they desire on various pleas the rendition of those who have offended them, is not a matter of doubt; ostensibly on political or religious grounds a demand of surrender has long ceased to be made. The settled and acknowledged policy of our government on this head may almost be thought to obviate the need of further provision by the legislature against a claim which has grown obsolete. The statute of 1870 was designed to guard against a different and more insidious danger, namely, that of our authorities being made use of to deliver up fugitives who have become the objects of suspicion, espionage, or persecution by arbitrary power, upon the alleged breach of some ordinary law for the protection of property or life. Every facility of primary accusation was meant to be given in the case of a foreigner resident within the realm which the criminal law affords for rendering amenable a native-born subject of the Crown. The same proof prima facie was declared to be sufficient, while the just and obvious rule was declaratively enacted that the refugee should only be deported or detained in custody on the production of such evidence as would justify a magistrate in sending for trial any subject of the Queen for a like offense committed here. If the provisions of the act are in this respect deemed insufficient after seven years’ experience of their application, it will he the duty of Parliament to alter and amend them. But their practical value would be put in jeopardy if the demand made by one government, and by one only in Christendom, were conceded, that they should be so far repealed that when an exile had been surrendered on presumptive proof of complicity in one out of a dozen common misdemeanors, he might, after acquittal on that charge, be kept in custody, with a view to be put upon his trial for some other offense or offenses of which not a shadow of proof had been offered to an English magistrate that he was possibly or probably guilty. Practically this might be misunderstood as an invitation to a foreign government to deprive its subjects of the right of asylum in England, which, time out of mind, all our neighbors have enjoyed, irrespective of creed, race, or local institutions. Clauses 3 and 19 of the act of 1870 were designed to prevent possible injustice being done to an exile, against whom an accusation may be brought with proof prima facie sufficient to warrant his committal here, but whose guilt may not be established upon trial in the foreign country. Our executive government was forbidden by Parliament to give up any foreigner without security by law, or specific agreement, that were a new charge subsequently preferred against him he should again have the protection of the same just and merciful provisions which he had when first accused, and our government was reciprocally directed to forego all claim to detain and try an exile in England on a second charge after he had been duly acquitted on the first. To repeal this provision would appear to be a waiver by statute of our primary jurisdiction in the matter. Had we to deal with countries only whose jurisprudence rests upon what England deems the principles of social and political civilization, there would perhaps be little risk in the concession. Criminal justice, as our people understand it, and as our laws and courts interpret it, implies publicity of arraignment, confronting with the accuser, and the weighing of evidence by an irremovable judge, indifferent to the frown of power. It implies the verdict of a fair jury, a record open to legal scrutiny, and the fearless criticism of an unfettered press. In America, France, and other constitutional states, the hazard may be considered comparatively slight of any grave hardship arising from allowing a fugitive once surrendered to be twice or thrice indicted for different crimes. But the law of 1870 was framed to meet other circumstances as well as these, and in the hope of establishing a uniform rule in our dealings with foreign states. In lieu of the wise and just provision embodied in section III of the act of 1870 above referred to, it is proposed to give the accused an opportunity of volunteering such disclosures to the, June 22, 1878

From John Welsh
To It is the interest of every civilized government to aid in the apprehension and expulsion of evil-doers, who merely claim its hospitality to escape punishment. But it is not for the honor or interest of the Government of England to be made, unawares, instrumental in the pursuit and capture of fugitives from the resentment of absolute or irresponsible rulers. That such exist we know, and that they desire on various pleas the rendition of those who have offended them, is not a matter of doubt; ostensibly on political or religious grounds a demand of surrender has long ceased to be made. The settled and acknowledged policy of our government on this head may almost be thought to obviate the need of further provision by the legislature against a claim which has grown obsolete. The statute of 1870 was designed to guard against a different and more insidious danger, namely, that of our authorities being made use of to deliver up fugitives who have become the objects of suspicion, espionage, or persecution by arbitrary power, upon the alleged breach of some ordinary law for the protection of property or life. Every facility of primary accusation was meant to be given in the case of a foreigner resident within the realm which the criminal law affords for rendering amenable a native-born subject of the Crown. The same proof prima facie was declared to be sufficient, while the just and obvious rule was declaratively enacted that the refugee should only be deported or detained in custody on the production of such evidence as would justify a magistrate in sending for trial any subject of the Queen for a like offense committed here. If the provisions of the act are in this respect deemed insufficient after seven years’ experience of their application, it will he the duty of Parliament to alter and amend them. But their practical value would be put in jeopardy if the demand made by one government, and by one only in Christendom, were conceded, that they should be so far repealed that when an exile had been surrendered on presumptive proof of complicity in one out of a dozen common misdemeanors, he might, after acquittal on that charge, be kept in custody, with a view to be put upon his trial for some other offense or offenses of which not a shadow of proof had been offered to an English magistrate that he was possibly or probably guilty. Practically this might be misunderstood as an invitation to a foreign government to deprive its subjects of the right of asylum in England, which, time out of mind, all our neighbors have enjoyed, irrespective of creed, race, or local institutions. Clauses 3 and 19 of the act of 1870 were designed to prevent possible injustice being done to an exile, against whom an accusation may be brought with proof prima facie sufficient to warrant his committal here, but whose guilt may not be established upon trial in the foreign country. Our executive government was forbidden by Parliament to give up any foreigner without security by law, or specific agreement, that were a new charge subsequently preferred against him he should again have the protection of the same just and merciful provisions which he had when first accused, and our government was reciprocally directed to forego all claim to detain and try an exile in England on a second charge after he had been duly acquitted on the first. To repeal this provision would appear to be a waiver by statute of our primary jurisdiction in the matter. Had we to deal with countries only whose jurisprudence rests upon what England deems the principles of social and political civilization, there would perhaps be little risk in the concession. Criminal justice, as our people understand it, and as our laws and courts interpret it, implies publicity of arraignment, confronting with the accuser, and the weighing of evidence by an irremovable judge, indifferent to the frown of power. It implies the verdict of a fair jury, a record open to legal scrutiny, and the fearless criticism of an unfettered press. In America, France, and other constitutional states, the hazard may be considered comparatively slight of any grave hardship arising from allowing a fugitive once surrendered to be twice or thrice indicted for different crimes. But the law of 1870 was framed to meet other circumstances as well as these, and in the hope of establishing a uniform rule in our dealings with foreign states. In lieu of the wise and just provision embodied in section III of the act of 1870 above referred to, it is proposed to give the accused an opportunity of volunteering such disclosures to the
June 22, 1878

No. 179. Mr. Welsh to Mr. Evarts. Legation of the United States, London, June 22, 1878. (Received July 3.) No. 100.] Sir: I have the honor to inclose a copy,…

19th CenturyDiplomacyReconstruction