CHAPTER CV.

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.

Thirty Years' View (Vol. 2 of 2) or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 · 第 105 / 202 章