BRITISH TREATY: EXTRADITION ARTICLE: MR. BENTON'S SPEECH: EXTRACT.
I proceed to the third subject and last article in the treaty--the
article which stipulates for the mutual surrender of fugitive
criminals. And here again we are at fault for these same protocols.
Not one word is found in the correspondence upon this subject, the
brief note excepted of Lord Ashburton of the 9th of August--the
day of the signature of the treaty--to say that its ratification
would require the consent of the British parliament, and would
necessarily be delayed until the parliament met. Except this note,
not a word is found upon the subject; and this gives no light
upon its origin, progress, and formation--nothing to show with
whom it originated--what necessity for it in this advanced age
of civilization, when the comity of nations delivers up fugitive
offenders upon all proper occasions--and when explanations upon each
head of offences, and each class of fugitives, is so indispensable
to the right understanding and the safe execution of the treaty.
Total and black darkness on all these points. Nor is any ray of
light found in the President's brief paragraphs in relation to it.
Those paragraphs (the work of his Secretary, of course) are limited
to the commendation of the article, and are insidiously deceptive,
as I shall show at the proper time. It tells us nothing that we
want to know upon the origin and design of the article, and how
far it applies to the largest class of fugitive offenders from the
United States--the slaves who escape with their master's property,
or after taking his life--into Canada and the British West Indies.
The message is as silent as the correspondence on all these points;
and it is only from looking into past history, and contemporaneous
circumstances, that we can search for the origin and design of this
stipulation, so unnecessary in the present state of international
courtesy, and so useless, unless something unusual and extraordinary
is intended. Looking into these sources, and we are authorized
to refer the origin and design of the stipulation to the British
minister, and to consider it as one of the objects of the special
mission with which we have been honored. Be this as it may, I do
not like the article. Though fair upon its face, it is difficult
of execution. As a general proposition, atrocious offenders, and
especially between neighboring nations, ought to be given up; but
that is better done as an affair of consent and discretion, than
under the constraints and embarrassments of a treaty obligation.
Political offenders ought not to be given up; but under the stern
requisitions of a treaty obligation, and the benefit of an _ex
parte_ accusation, political offenders may be given up for murder,
or other crimes, real or pretended; and then dealt with as their
government pleases. Innocent persons should not be harassed with
groundless accusations; and there is no limit to these vexations,
if all emigrants are placed at the mercy of malevolent informers,
subjected to arrest in a new and strange land, examined upon _ex
parte_ testimony, and sent back for trial if a probable case is made
out against them.
This is a subject long since considered in our country, and on which
we have the benefit both of wise opinions and of some experience.
Mr. Jefferson explored the whole subject when he was Secretary of
State under President Washington, and came to the conclusion that
these surrenders could only be made under three limitations:--1.
Between coterminous countries. 2. For high offences. 3. A special
provision against political offenders. Under these limitations, as
far back as the year 1793, Mr. Jefferson proposed to Great Britain
and Spain (the only countries with which we held coterminous
dominions, and only for their adjacent provinces) a mutual delivery
of fugitive criminals. His proposition was in these words:
"Any person having committed murder of malice prepense, not of
the nature of treason, or forgery, within the United States or
the Spanish provinces _adjoining_ thereto, and fleeing from the
justice of the country, shall be delivered up by the government
where he shall be found, to that from which he fled, whenever
demanded by the same."
This was the proposition of that great statesman: and how different
from those which we find in this treaty! Instead of being confined
to coterminous dominions, the jurisdiction of the country is taken
for the theatre of the crime; and that includes, on the part of
Great Britain, possessions all over the world, and every ship on
every sea that sails under her flag. Instead of being confined to
two offences of high degree--murder and forgery--one against life,
the other against property--this article extends to seven offences;
some of which may be incurred for a shilling's worth of property,
and another of them without touching or injuring a human being.
Instead of a special provision in favor of political offenders, the
insurgent or rebel may be given up for murder, and then hanged and
quartered for treason; and in the long catalogue of seven offences,
a charge may be made, and an _ex parte_ case established, against
any political offender which the British government shall choose to
pursue.
To palliate this article, and render it more acceptable to us, we
are informed that it is copied from the 27th article of Mr. Jay's
treaty. That apology for it, even if exactly true, would be but
a poor recommendation of it to the people of the United States.
Mr. Jay's treaty was no favorite with the American people, and
especially with that part of the people which constituted the
republican party. Least of all was this 27th article a favorite with
them. It was under that article that the famous Jonathan Robbins,
alias Thomas Nash, was surrendered--a surrender which contributed
largely to the defeat of Mr. Adams, and the overthrow of the federal
party, in 1800. The apology would be poor, if true: but it happens
to be not exactly true. The article in the Webster treaty differs
widely from the one in Jay's treaty--and all for the worse. The
imitation is far worse than the original--about as much worse as
modern whiggery is worse than ancient federalism. Here are the two
articles; let us compare them:
MR. WEBSTER'S TREATY.
"_Article 10._--It is agreed that the United States and her
Britannic Majesty shall, upon mutual requisitions by them, or
their ministers, officers, or authorities, respectively made,
deliver up to justice all persons who, being charged with the
crime of murder, or assault with intent to commit murder, or
piracy, or arson, or robbery, or forgery, or the utterance of
forged papers committed within the jurisdiction of either, shall
seek an asylum, or shall be found, within the territories of
the other: provided, that this shall only be done, upon such
evidence of criminality as, according to the laws of the place
where the fugitive or person so charged shall be found, would
justify his apprehension and commitment for trial, if the crime
or offence had there been committed; and the respective judges
and other magistrates shall have power, jurisdiction, and
authority, upon complaint made under oath, to issue a warrant
for the apprehension of the fugitive or person so charged, that
he may be brought before such judges, or other magistrates,
respectively, to the end that the evidence of criminality may
be heard and considered; and if, on such hearing, the evidence
be deemed sufficient to sustain the charge, it shall be the duty
of the examining judge, or magistrate, to certify the same to
the proper executive authority, that a warrant may issue for the
surrender of such fugitive. The expense of such apprehension and
delivery shall be borne and defrayed by the party who makes the
requisition, and receives the fugitive."
MR. JAY'S TREATY.
"_Article 27._--It is further agreed that his Majesty and the
United States, on mutual requisitions by them, respectively,
or by their respective ministers, or officers, authorized to
make the same, will deliver up to justice all persons who,
being charged with murder, or forgery, committed within the
jurisdiction of either, shall seek an asylum within any of
the countries of the other: provided, that this shall only be
done on such evidence of criminality as, according to the laws
of the place where the fugitive or person so charged shall be
found, would justify his apprehension and commitment for trial
if the offence had there been committed. The expense of such
apprehension and delivery shall be borne and defrayed by those
who make the requisition, and receive the fugitive."
These are the two articles, and the difference between them is great
and striking. First, the number of offences for which delivery of
the offender is to be made, is much greater in the present treaty.
Mr. Jay's article is limited to two offences--murder and forgery:
the two proposed by Mr. Jefferson; but without his qualification
to exclude political offences, and to confine the deliveries to
offenders from coterminous dominions. The present treaty embraces
these two, and five others, making seven in the whole. The five
added offences are--assault, with intent to commit murder; piracy;
robbery; arson; and the utterance of forged paper. These additional
five offences, though high in name, might be very small in degree.
Assault, with intent to murder, might be without touching or hurting
any person; for, to lift a weapon at a person within striking
distance, without striking, is an assault: to level a fire-arm
at a person within carrying distance, and without firing, is an
assault; and the offence being in the intent, is difficult of
proof. Mr. Jefferson excluded it, and so did Jay's treaty; because
the offence was too small and too equivocal to be made a matter of
international arrangement. Piracy was excluded, because it was
absurd to speak of a pirate's country. He has no country. He is
_hostis humani generis_--the enemy of the human race; and is hung
wherever he is caught. The robbery might be of a shilling's worth of
bread; the arson, of burning a straw shed; the utterance of forged
paper, might be the emission or passing of a counterfeit sixpence.
All these were excluded from Jay's treaty, because of their possible
insignificance, and the door they opened to abuse in harassing the
innocent, and in multiplying the chances for getting hold of a
political offender for some other offence, and then punishing him
for his politics.
Striking as these differences are between the present article
and that of Mr. Jay's treaty, there is a still more essential
difference in another part; and a difference which nullifies the
article in its only material bearing in our favor. It is this: Mr.
Jay's treaty referred the delivery of the fugitive to the executive
power. This treaty intervenes the judiciary, and requires two
decisions from a judge or magistrate before the governor can act.
This nullifies the treaty in all that relates to fugitive slaves
guilty of crimes against their masters. In the eye of the British
law, they have no master, and can commit no offence against such
a person in asserting their liberty against him, even unto death.
A slave may kill his master, if necessary to his escape. This is
legal under British law; and, in the present state of abolition
feeling throughout the British dominions, such killing would not
only be considered fair, but in the highest degree meritorious and
laudable. What chance for the recovery of such a slave under this
treaty? Read it--the concluding part--after the word "committed,"
and see what is the process to be gone through. Complaint is to
be made to a British judge or justice. The fugitive is brought
before this judge or justice, that the evidence of the criminality
may be heard and considered--such evidence as would justify the
apprehension, commitment, and trial of the party, if the offence
had been committed there. If, upon this hearing, the evidence be
deemed sufficient to sustain the charge, the judge or magistrate is
to certify the fact to the executive authority; and then, and not
until then, the surrender can be made. This is the process; and in
all this the new treaty differs from Jay's. Under his treaty the
delivery was a ministerial act, referring itself to the authority
of the governor: under this treaty, it becomes a judicial act,
referring itself to the discretion of the judge, who must twice
decide against the slave (first, in issuing the warrant; and next,
in trying it) before the governor can order the surrender. Twice
judicial discretion interposes a barrier, which cannot be forced;
and behind which the slave, who has robbed or killed his master,
may repose in safety. What evidence of criminality will satisfy the
judge, when the act itself is no crime in his eyes, or under his
laws, and when all his sympathies are on the side of the slave? What
chance would there be for the judicial surrender of offending slaves
in the British dominions, under this treaty, when the provisions
of our own constitution, within the States of our own Union, in
relation to fugitive slaves, cannot be executed? We all know that a
judicial trial is immunity to a slave pursued by his owner, in many
of our own States. Can such trials be expected to result better for
the owner in the British dominions, where the relation of master
and slave is not admitted, and where abolitionism is the policy of
the government, the voice of the law, and the spirit of the people?
Killing his master in defence of his liberty, is no offence in the
eye of British law or British people; and no slave will ever be
given up for it.
(Mr. WRIGHT here said, that counterfeiting American securities, or
bank notes, was no offence in Canada; and the same question might
arise there in relation to forgers.)
Mr. BENTON resumed. Better far to leave things as they are. Forgers
are now given up in Canada, by executive authority, when they fly
to that province. This is done in the spirit of good neighborhood;
and because all honest governments have an interest in suppressing
crimes, and repelling criminals. The governor acts from a sense of
propriety, and the dictates of decency and justice. Not so with the
judge. He must go by the law; and when there is no law against the
offence, he has nothing to justify him in delivering the offender.
Conventions for the mutual surrender of large offenders, where
dominions are coterminous, might be proper. Limited, as proposed by
Mr. Jefferson in 1793, and they might be beneficial in suppression
of border crimes and the preservation of order and justice. But
extended as this is to a long list of offenders--unrestricted as
it is in the case of murder--applying to dominions in all parts of
the world, and to ships in every sea--it can be nothing but the
source of individual annoyance and national recrimination. Besides,
if we surrender to Great Britain, why not to Russia, Prussia,
Austria, France, and all the countries of the world? If we give up
the Irishman to England, why not the Pole to Russia, the Italian
to Austria, the German to his prince; and so on throughout the
catalogue of nations? Sir, the article is a pestiferous one; and
as it is determinable upon notice, it will become the duty of the
American people to elect a President who will give the notice, and
so put an end to its existence.
Addressing itself to the natural feelings of the country, against
high crimes and border offenders, and in favor of political liberty,
the message of the President communicating and recommending this
treaty to us, carefully presents this article as conforming to our
feelings in all these particulars. It is represented as applicable
only to high crimes--to border offenders; and to offences not
political. In all this, the message is disingenuous and deceptive,
and calculated to ravish from the ignorant and the thoughtless an
applause to which the treaty is not entitled. It says:
"The surrender to justice of persons who, having committed high
crimes, seek an asylum in the territories of a _neighboring_
nation, would seem to be an act due to the cause of general
justice, and properly belonging to the present state of
civilization and intercourse. The _British provinces_ of North
America are separated from the States of the Union by a line
of several thousand miles; and, along portions of this line,
the amount of population on either side is quite considerable,
_while the passage of the boundary is always easy_.
"Offenders against the law _on the one side transfer themselves
to the other_. Sometimes, with great difficulty they are brought
to justice; but very often they wholly escape. A consciousness
of immunity, from the power of avoiding justice in this way,
instigates the unprincipled and reckless to the commission of
offences; _and the peace and good neighborhood of the border are
consequently often disturbed_.
"In the case of offenders fleeing from Canada into the United
States, the governors of States are often applied to for their
surrender; and questions of a very embarrassing nature arise
from these applications. It has been thought highly important,
therefore, to provide for the whole case by a proper treaty
stipulation. The article on the subject, in the proposed treaty,
is carefully confined to such offences as all mankind agree
to regard as heinous and destructive of the security of life
and of property. In this careful and specific enumeration of
crimes, the object has been to exclude all political offences,
or criminal charges arising from wars or intestine commotions.
Treason, misprision of treason, libels, desertion from military
service, and other offences of a similar character, are
excluded."
In these phrases the message recommends the article to the Senate
and the country; and yet nothing could be more fallacious and
deceptive than such a recommendation. It confines the surrender to
border offenders--Canadian fugitives: yet the treaty extends it
to all persons committing offences under the "_jurisdiction_" of
Great Britain--a term which includes all her territory throughout
the world, and every ship or fort over which her flag waves. The
message confines the surrender to high crimes: yet we have seen
that the treaty includes crimes which may be of low degree--low
indeed! A hare or a partridge from a preserve; a loaf of bread
to sustain life; a sixpenny counterfeit note passed; a shed
burnt; a weapon lifted, without striking! The message says all
political crimes, all treasons, misprision of treason, libels, and
desertions are excluded. The treaty shows that these offences are
not excluded--that the limitations proposed by Mr. Jefferson are
not inserted; and, consequently, under the head of murder, the
insurgent, the rebel, and the traitor who has shed blood, may be
given up; and so of other offences. When once surrendered, he may be
tried for any thing. The fate of Jonathan Robbins, alias Nash, is a
good illustration of all this. He was a British sailor--was guilty
of mutiny, murder, and piracy on the frigate Hermione--deserted
to the United States--was demanded by the British minister as a
murderer under Jay's treaty--given up as a murderer--then tried by a
court-martial on board a man-of-war for mutiny, murder, desertion,
and piracy--found guilty--executed--and his body hung in chains
from the yard-arm of a man-of-war. And so it would be again. The
man given up for one offence, would be tried for another; and in
the number and insignificance of the offences for which he might be
surrendered, there would be no difficulty in reaching any victim
that a foreign government chose to pursue. If this article had
been in force in the time of the Irish rebellion, and Lord Edward
Fitzgerald had escaped to the United States after wounding, as he
did, several of the myrmidons who arrested him, he might have been
demanded as a fugitive from justice, for the assault with intent to
kill; and then tried for treason, and hanged and quartered; and such
will be the operation of the article if it continues.