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PUBLIC RECORD OFFICE

Reference :-

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TLC.O.885

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13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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That the first Treaty concluded after the passing of the Act, and on the basis of that General Draft, was that with Germany of the 14th May 1872, the British draft of which followed the wording above given.

That the German counter-draft, however, contained Article I. of the Treaty in its present form, viz.:—

"The High Contracting Parties engage to deliver up to each other those persons who, being accused or convicted of a crime committed in the territory of the one party shall be found within the territory of the other party, under the circumstances and conditions stated in the present Treaty."

And that that wording, which was agreed to by the Law Officers and the Home Office, was accepted by Her Majesty's Government, and had been adopted more or less in all the subsequent Extradition Treaties concluded by Great Britain, with the excep tion of that concluded with the Netherlands on the 19th June 1874, which followed the terms of the original General Draft of March 1871, and provided for the extra- dition of persons accused or convicted of offences committed within the jurisdiction of the requiring party when they should be found within the territories of the other party.

That Sir Julian Pauncefote was to request that we would take the papers transmitted with his letter into our consideration, and that we would favour your Lordship with our opinion as to :—

1. Whether the present proposition of the Imperial German Government would be met, as far as Her Majesty's Government were concerned, by the substitution for Article I. of the Treaty of the 14th May 1872, of an Article framed on the model of Article I. of the original General Draft of March 1871; and

2. Whether, if so, we were aware of any legal objections to the adoption of such a

course.

In obedience to your Lordship's commands, we have taken the papers into our consideration, and have the honour to

Report-

That we are not prepared to advise that the Treaty of the 14th May 1872, should be modified by the substitution for Article I. of an Article framed on the model of Article I. of the original General Draft of March 1871.

It is true that the word "jurisdiction" was used in the Ashburton Treaty and in the Extradition Act of 1870 and in the General Draft Treaty prepared in pursuance of the Act; but a few years before the passing of that Act the Court of Queen's Bench had decided (in Tivnan's case, 5 Best and Smith, 645) that "jurisdiction meant "exclusive jurisdiction." On the assumption that it means "exclusive jurisdiction," its signification is not wider than that of "territory," and so there would be no result from the substitution of one word for the other.

On the other hand, the use of the word "jurisdiction" instead of "territory " might give rise to misconception.

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For instance, under the Convention of 1852 between the United States and Prussia, which provided for the surrender of persons charged with having committed crimes within the "jurisdiction" of the one party who should be found within the terri- tories" of the other, a demand was made by Prussia on the United States for the surrender of a person alleged to have committed crimes in Belgium "within the legal jurisdiction of Prussia."

It was contended that inasmuch as such crimes were punishable by the laws of Belgium, the fugitive, being a subject of Prussia, was, by the laws of Prussia,, subject to be punished for them in Prussia, and, there being no Extradition Treaty between Belgium and the United States, Prussia asked for his surrender to her. This view was adopted by Judge Blachford in the Circuit Court (see re Stupp, 11 Blachford, 124); but the Attorney-General for the United States did not concur in this opinion, but held that "jurisdiction was a term convertible with "country," and the surrender was refused.

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The Attorney-General's view was partly founded on a case in the year 1858 (see Forsyth's Const. Law," p. 368), in which case the question was raised and submitted to the then Law Officers whether a British subject who was charged with being acces sory before the fact in this country to the murder of a Frenchman in Paris, and who had escaped to the United States, was a person charged with the crime of murder committed within British jurisdiction, whose surrender might be demanded under the Ashburton Treaty, and the opinion given by the then Law Officers was in the negative.

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We think that it would be undesirable to alter, in the way suggested, the Treaty of the 14th May 1872, and that it would be better to deal separately with questions which arise with regard to extradition to or from Protectorates.

We have, &c. (Signed)

The Most Hon. the Marquis of Salisbury.

&c.

&c.

&c.

RICHARD E. WEBSTER. EDWARD CLARKE.

List of Papers to accompany reference to the Law Officers, February 22, 1888.

I. Verbal communication made by Prince Ratibor on behalf of the German

Government. February 7, 1888.

II. Extradition Treaty with Germany. May 14, 1872. No. 536.

III. Confidential Print. Pacific Islands, Part IX., Confidential No. 5,341, containing -(1) Mr. Scott's Despatch No. 315 of August 10, 1886, and inclosed Memorandum, No. 239, p. 150; (2) Count Hatzfeldt's note verbale of Septem- ber 1, 1886, No. 296, 187.

IV. Sir E. Malet's Despatch No. 344, September 14. 1887, and inclosed Memorandum

on Pacific Protectorates. Confidential No. 5,611. p. 44. V. Treaty with United States, August 9, 1842, Article X.

No. 284.

VI. Extradition Treaty with the Netherlands, June 19, 1874. No. 572.