[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.