The New York herald., 1876-09-08
veen ourselves and Morocco, possibly, ON demand

Assuming, therefore, as a starting point that Canada
wishes TO anord inviolate asylum 10 our rebels
and that the United States will iorego the luxury
Of sheltering hers ian assumption which obviously
tends the theory that rebels have all rights gov
ernments noneh but that each desires repe and
surrender the criminals OF the other the problem Is
how to accomplish both objects. As to rebels there
ought TO DO no difficulty In the way OF formulating
IN treaty the propositions that no person shall
be surrendered If tho government applied
TO for the surrender deems tho offence OF
political character; that the accused shall
have right to general trial OF that issue before sur
render, and upon the facts resu: OF that time the
political power shall make and assume the RESPONSE
bity OF making the final decision; that Tor trial OF
any eXradited person by tho receiving nation Tor po
tical offence committed before the surrender, all VINO
are concerned IN the trial whether ms prosecuting OH
GERS or judges shall be liable to criminal suits and to
civil suits in damages behalf OF the injured person.
or Tor the benefit OF his representatives. and OF course
that the prosecuting nation shall be liable 10 all the
consequences OF deliberate breach OF plighcd faith.
Possibly treaty might also formulate IN advance
definition OF political offence, but tho task would
not be easy and such had bottcr be left to It's own
facts
LIST OF OFFENCES.
Then, rs to criminal classes the list Of crimes bo
tween ourselves and Canaa with contcrminous bounda,
res, should cover leonies and misdeineanors or All
acts punishable by Imprisonment and which are not
mere breaches OF civil contract That comprehensive
ness has already been reached in more OF our
existing treaties with foreign Powers which cvca cover
'irauduont bankruptcy" offence which may be
possible only under the law one party treaty,
since the other may have no bankrupt law
PRELIMINARY INQUIRY As TO THE CRIME
Thus tar there VIII he, probably no serious disagree
appears when we deal with the question OF the quantity,
quality and authorization Of the evidence under which
either will arrest and surrender Neither would ob-
jec to giving up It's own citizens or subjects or those OF
u third Power.
la 1852 England signed extradition treaty with
France negotiated with great care wherein the former
promised 10 surrender, The production 10 the govern
mcnt IN London OF scnHnce oil convection On warrant
of apprehension Judicousy verified setting forth the
nature OF tho crime, description ot the offender,
which, when lcgalized by the Ambassador or other
diplomatic agent Of France IN London snail be c0n.
sidored positive pr0ol OF the allegations contains
The Home Olico Then TO examine the authenticity
OF the document inquire II the crme charged be-
treaty crime and If satisfied to notify magistrate Of
demand and that the person to be arrested and,
when arrested tho magistrate, if convinced of tho
identity orders the surrender. This treaty 1t will be
did not any preliminary trial OF or inquiry
guilt before British magistrate but surrendered on
French statement OF guilt There grave doubts in
the House OF Lords about the wisdom OF aboshng the
rule which required p,tmd dce evidence OF the prison.
guilt to be produced before tho arrcsng and sur
rendering magistrate; and the treaty fell but not Tor
that reason alone Upon this point Lord Derby IN has
sity of preliminary inquiry IN all cases; you muy
argue the other hand that such Investigations arc
unnecessary iorm because II you trust the govern
mcnt to which you surrender tho man, you may DO
assured, without such inquiry that they will try him
fairly, and If you don't trust the government to deal
fairly you should not surrender him at all Either OF
these alternatives think, is airly dciensiblc"
Why should we not allow 10 run, or assist TO enforce.
IN the United States, Canadian bench warrant
other criminal process sufficient III Canada to warrant
the there OF criminal oicndery Why should we
refuse to thus lcngthen the arm OF canadian criminal
justiceY We do assert asylum IN the United States
for criminals We only maintain Tor rebels or polti
cal offenders We willingly enforce Ior Canadian
that Canadian criminal Jurisprudence is as
sound It's civil Jurisprudence? TO bo sure,
lina judgment IN civil cause Is complete act, anu
warrant of arrest is preliminary act; but why not
the general power OF Canada 10 nish tho latter
How does the tact TINT the offender has passed the
frontier Affect moral duty or our national convon-
ienceY Is 1t not at last, question OF international
faith and credit, and right hero do we not touch tho
difficulty OF the British law OF 1870 which has ono
inhexble rule for all nations, no matter what their
criminal code, and makes distinction between tho
criminal jurspr OF the Crescent and tho CrossY
PRELIMINARY INQUIRY THE ROOT OF THE DIFFICULTY.
The British EXtraditIon law OF 1870 does no doubt
contemplate that a flying criminal found III England
shall put in jeopardy OF trial by excepting Tor
crimes which made crimes by treaty and upon evil
which British magistrate snail decide fairly
raises such a presumption OF guilt Us to put the
upon his defence. For every crme the criminal
shall have tho right before we try him to appeal TO
England say II he shall be tried therefor by us
Lawrence SAID the President substantially ths:-
'.You order tried for any other forgery than
the forgery described in the extradon warrant I'LL
take TO England and trst try me- there" Some
times is commended that US ~ the second offence
England only seeks to know that it Is not really poit-
cal character and Tor nothing else. Others,
however, go further, and say that under no circum
shall the fugitive be tried Tor an anterior offence
in tho treaty, and 1t Is Tor this that England VIII
)udioiay inquire each charge That govern
should refuse 10 put It's arrosting machinery In
motion Tor every little openny offence Is rational
enough out Il trial tor rebellion is guarded against
business interest Is IT OF the United States
question the Justice OF CanadaY But It Is SAID the
surreuderng State must test each offence charged or
to be charged by its Law. whys For its
security or that Of the accusedY And If
IL such guarantees as to the crime why not
us tral, including rules oi evidence, rcccv
ing testimony, examination OF the prisoner, separation
oil questions OF law and iact pfesumpons OF innocence,
composition and creation oi the jury ana executive
powery II the criminal Is 10 bc subjected to trial
der the system of Continental Europe that one
thing the Canadian system is quite another thing.
BRIrIsH-FRgNcH TREATY or 1852
In the seventh article oi the convention between Great
Britain and France, negotiated by Lord Malmesoury,
British Minister OF Foreign Affairs, and Count
WaIewski French Ambassador at Sweaen. the rathca-
tons which exchanged June 2, 1882, II WAS
Stipulated
'.No accused or convicted person who may be sur
rendered snail, in any case, be proceeded against
punished OF any political offence cominitei
PRIOR his surrender for any crime or offence
described IN the present convention which he may
have committed previously to his being surrendered"
This treaty Of 1852 out OF much misunderstand
ing and dispute between the two nations over tue
treaty OF ls43, under which France lad Claimed Of
England fourteen iugtves, but owing to the bad word
ing trcaty, only obtancd one OF them. In 1916
Lord Aberdeen, in note replying to French CON-
plants said that the Home otice and tho law officers
agreed that treaty was necessary, and that 1t
unnecessary to INSIST on preliminary inquiry be.
forc "a BRUSH magistrate. And, result Of
tns correspondence the Ministry OF the late Lord Derby
negotiated the treaty OF 1882, which tell IN Parliament
already explained, growing Largely out of
insuar preudces against The French code with
It's nqusitur,l process. Ani out OF this dispute with
France came the Parliamentary Commission Of 1868
and the British law OF 1870, which attempts to put
ourselves, France Turkey, China and Morocco on tue
same footing The coprivancc, IN TINS French treaty
OF 1852, dealing with crimes committed before
render but not described III the eXiradiion warrant
because known by either government seems worthy
OF consideration anu adoption. According ~ II the
surrcnderng state says to the demanding State, "Wc
Will put arscsing machinery III motion unless
you prove treaty crime, out when you establish
that one will deliver up the offender and you
punish him for any treaty crime "
SHALL DECIDE WHETHER ruk ACCUSED Is REBEL
OR A CEiMiNALy
As political offenders are not 10 be surrendered, who
shall decide whether the crime as proved WAS OF po
lt,csl character The early eXtradon treaties PRIOR
TO 1880 related chiefly to enemies OF the sovereign
political sense and not TO criminals When President
Iyer transmitted The British treaty oil 1872 TO the
Senate he said IL excluded all 'crnina charges aris
IN. from wars or intestine commo,ons. But no.
where is thors definition OF offences thus
born of political passion. In which category was the
dreadful crime OF shooting President LI-
c0inY IL IL 20 see that the decision ought
no, 10 be lclt TO subordin,tes IN any government,
whether they be judicial or executive Nothing less
the supreme executive or political power can DC
held responsible. Primarily II Is OF course, quee-