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.