PUBLIC RECORD OFFICE
Reference :-
TLC.O.8
.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
2
On receipt of this message a telegram (Enclosure 3 in No. 18 of Print) was despatched from Scotland Yard to the Chief Constable at Southampton requesting him to keep the fugitives under observation, and adding that a provisional warrant of arrest would be applied for on the following day. This was done, and the warrant was issued at 10.45 a.m. on the 24th. There was no time to send it to be made use of at Southampton, as the vessel arrived at that port on the afternoon of the same day, but the Southampton police were notified by telegraph of its issue, and were requested to effect the arrest of the Hoffmanns (Enclosure 4 în No. 18 of Print).
The "Bürgermeister" duly arrived and anchored off Netley on the afternoon of the 24th, when Detective-Sergeant Pollock boarded the steamer. His action is fully detailed in his report (Enclosure 1 in No. 18 of Print). He failed to obtain the assent of the captain to the arrest of the Hoffmanns, nor could he persuade them to go on shore in the tender. He accordingly had to leave them on board, and returned on the tender to Southampton. Nothing further was heard of these persons, and efforts made to obtain their provisional arrest, with a view to extradition, proved of no avail. I am now to invite your consideration of the correspondence which has passed with the German Government and with His Majesty's Embassy at Berlin in regard to these two incidents (Papers numbered 3, 5, 6, 7, 12, 14, 16, 19, 23, 24, 33, 34, 35, 39, and 42 in the enclosed Print).
In their reply to the representations addressed to them in the case of Goldstein (Enclosure in No. 7 of Print) the German Government defended the attitude taken up by the captain of the Ernst Woermann on grounds to which, in Sir E. Grey's opinion, no great weight can well be attached.
These grounds shortly were:-
1. That the German Consul at Southampton had merely given the police officer a letter to the captain to assist that officer in a visit of search, and it was not an instruction to allow an arrest on the ship.
2. That the police officer did not consider himself authorised to effect such
arrest.
3. That in 1881 the magistrate at Bow Street had expressed doubts as to whether a warrant could be legally executed on a German ship only touching at Southampton.
4. That there was a distinction between an arrest on land and an arrest on
board of a merchant-ship lying in British territorial waters.
5. That the arrest was analogous to a case for extradition to a third country, and that the consent of the German Government was therefore a pre- requisite for such an arrest, and that it would, presumably, have been given had it been asked for.
On these points it is to be observed that no evidence could be traced of the magistrate at Bow Street in 1881 (the late Sir James Vaughan) ever having expressed any such view as that attributed to him in Fertig's case (see No. 10 of Print); that there was no question of any extradition to a third State, and that considerations of time alone would have made it impossible to have obtained the consent of the Imperial German Government without detaining the ship pending the result of the necessary communications between the two Governments. His Majesty's Ambassador at Berlin was consequently_instructed to bring these considerations to the notice of the German Government (No. 12 of Print), but no further communica tion was received from them so far as the Goldstein case was concerned.
After the lapse of many months that Government replied to the enquiry made by His Majesty's Government as to the grounds on which the arrest of the Hoffmanns had been opposed by the captain of the steamship" Bürgermeister." This reply is contained in Paper No. 24. In it some stress was laid on the circumstance of the police having no warrant [Superintendent Froest observes, with much force (Enclosure 2 in No. 18 of Print), that it would have made no difference if they had had a warrant in their possession, and the production of a warrant certainly produced no better result in Goldstein's case], and they reverted to the argument already advanced that their consent was necessary because the case was in the nature of an extradition to a third State, instancing, in support of this contention, that when a fugitive criminal was extradited from Canada to Germany, and was disembarked to cross this country in transitu, the Imperial Government were required to commence extradition proceedings de novo to some extent in England. This unfortunately is the case at present, and the reasons why this formality is deemed to be necessary in Canadian cases is fully explained on pp. 32 and 33 of the Print, in a memorandum
3
by Mr. Maycock, the Superintendent of the Treaty Department of this Office. It will be seen on reference to the Home Office letter of the 10th February, 1910 (No. 30 of Print), that it is contemplated to consider what practical steps can be adopted to remove this anomaly, and to place Canada on the same footing, in this respect, as all other parts of His Majesty's dominions.
The reply which His Majesty's Ambassador at Berlin was instructed to make to the German Government will be found in paper No. 33 and the rejoinder thereto of Herr Kiderlen-Waechter is in paper No. 34 of the Print. The Imperial Government in this last-mentioned note emphatically reiterate that they will not assent to any kind of British warrant being executed, unless their consent has been previously obtained, on German ships of commerce-lying only temporarily in British waters, and allusion is made to their sovereign rights over such ships.
Sir Edward Grey is unable to see that the general principle involved is in the remotest degree affected by the circumstance of whether the duration of the stay of a foreign merchant ship in a British port is brief or protracted.
The last despatch addressed to His Majesty's Ambassador at Berlin is that in No. 35 of the Print, in which is embodied such information as this Department possesses with regard to the practice of other countries in these matters, and the final reply of the German Government is in No. 42 of the printed correspondence. It will be gathered from it that the Imperial Government, while not claiming any extra- territoriality for German merchant ships, and disclaiming any wish that they should be utilised as asylums for fugitive criminals, are unable to concur in the views of His Majesty's Government, and show no indication of abandoning the standpoint-- reiterated so many times in their previous communications-that their consent is an absolute prerequisite to the carrying out of an arrest on a merchant ship flying the German flag in British territorial waters.
It will not escape your notice that, in this last communication, the German Government seek again to draw a distinction between the case of fugitive criminals who take refuge on merchant vessels lying in foreign harbours and fugitive criminals who are already on board of such vessels when they touch temporarily in such harbours. So far as Sir E. Grey is aware, there are no recognised grounds for any such distinction in international law. The note further seems to imply that a principle of general international law is created by the mere fact of the existence of certain specific provisions in a Consular convention between Germany and the United States of America. Sir E. Grey, as at present advised, conceives this contention to be also untenable, for the reasons stated by Sir Edward Davidson in his minute of the 3rd October last, printed on p. 55 of the correspondence enclosed, to which I am to invite your special attention.
Though perhaps not directly pertinent to the issue now involved, it may not be out of place to mention that, in consequence of a complaint made some years ago by the German Consul-General at Cape Town that an arrest had been effected on a German merchant vessel at that port without notice having been given to him, enquiries were made of His Majesty's Consular Officers at some of the principal German ports as to whether, in the converse case, they received any notice from the German authorities of arrests or contemplated arrests on British merchant vessels. The replies showed that there was no uniformity of practice in such matters. In some places the police authorities notified the British Consular Officer after an At arrest had been made, and in others no such notification was vouchsafed at all. any rate, there is no record of the assent of His Majesty's Government having been solicited before such arrests were effected, nor would His Majesty's Government deem themselves justified in demanding it.
It will be seen from the Home Office letter of the 2nd instant (No. 45 of Print), that, pending a decision as to what action His Majesty's Government should take in the by no means improbable event of cases like those of Goldstein and the Hoffmanns recurring, the Metropolitan Police have been instructed not to attempt to execute any warrant issued either under the Extradition Acts or under the Fugitive Offenders Act on board a German merchant ship touching at an English port.
The question, therefore, that demands the most careful consideration is whether, in the event of arrest being again obstructed, as in the cases of Goldstein and the Hoffmanns, His Majesty's Government would be warranted in taking forcible measures to carry out what Sir Edward Grey believes to be their indisputable rights, so far as the municipal law of this country is concerned, after having previously notified to the German Government that they will feel compelled to do so in the interests of justice.
102
A 2