CO885-(15-16) — Page 159

PUBLIC RECORD OFFICE

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Reference :-

C.O.

885

15 PUBLIC RECORD OFFICE. LONDON

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It is now established beyond reasonable doubt that the men are French citizens, and it is clear, having regard to the special reservation in the Anglo-French Treaty of Extradition, and to the existing practice between the two countries with reference to the non-surrender of nationals, that, with knowledge of the facts of the case, the French Government neither would have surrendered, nor could have been reasonably expected to surrender under the Treaty, or by some substituted process of extradition of a less formal and regular kind, three persons who were French citizens.

The surrender did not, however, as a matter of fact, take place under the Treaty and Act, with the provisions of which there was no attempt to comply.

According to our view, indeed, the Act is not of application in the case of Pro- tectorates which are not part of the British dominions within its meaning, though this involves merely a question of the construction of a municipal enactment with which the French Government are not concerned, and cannot be supposed to be conversant.

Whether the surrender took place under the Treaty or outside of the Treaty, the French objection to it on the ground that the men were French citizens is equally strong and equally logical-in the former case it would have been made in absolute contra- vention of the terms of the Treaty, in the latter it would have been contrary to the general principle enunciated in the Treaty and accepted by both nations.

The request, therefore, of the French Government that these men should be handed back to the authorities of Dahomey on the ground that they were surrendered by a minor French official under a grave misconception of his powers, and in derogation of the principle adverted to, is in itself far from unreasonable."

On the other hand, the matter has to be regarded from other aspects-those of British policy and of English law. In this connection it is to be observed that the offenders were not brought within the jurisdiction of the Northern Nigerian Courts in consequence of any demand or request made by the British authorities.

They came within that jurisdiction through the voluntary-if misconceived-action of a French official, for which no British authority was even indirectly responsible. Having been found within the jurisdiction, they were thereupon arrested, committed for trial, tried, and convicted in due course of law, and it was, unfortunately, not until after the sentence had been actually pronounced that any representation from the Government of the French Republic reached His Majesty's Government on the subject.

It is not suggested, and could not, I think, be seriously maintained, that any grounds of law exist on which this verdict could be successfully impeached.

An appeal lies only to the Judicial Committee of the Privy Council, and in a criminal case must be preceded by an application for special leave to appeal. It is highly improbable that if such application were mado on behalf of the prisoners (and it is still open to them to make it if they think fit), the Judicial Committee would grant it, and no other means of obtaining a revision or reconsideration of the verdict lie open through the Courts of Law.

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Of executive methods of revision there are, of course "pardon" and "commuta- tion" either of these forms of exercise of the King's prerogative would, it is sub- mitted, be most unsuitable in this case. Moreover, neither would satisfy French requirements.

If the men were pardoned, the result would be to outrage the feelings of the popu- lation, and more especially of the coloured inhabitants, of Northern Nigeria, and to set free, nominally without a stain on their characters, these three malefactors. If the remainder of their sentences were commuted, the conviction would, of course, stand against them, but they would have received a punishment grotesquely inadequate to the offence.

In either event they could not be handed over to the French authorities, as, on receipt of their pardon or commutation, they would be free to go where they listed (which would probably not be in the direction of Porto Novo or other French territory), and if the British authorities attempted to arrest them for the purpose of handing them over to France, they could immediately sue out a writ of habeas corpus. More- over, it is extremely probable that even if they came, or were inveigled into French jurisdiction, the maxim "nemo debet bis vexari pro eodem delicto" would be applied, and that their former trial and pardon in the one case, and their former trial and con- viction in the other, would operate as the French equivalent of an absolute plea in bar. One other suggestion remains to be considered, and that is the suggestion of special legislation by Protectorate Ordinance to meet the case. Mr. Bertram Cox tells me that

it is undoubtedly within the powers of the Protectorate Constitution to pass such an Ordinance as would be required for this purpose. The preamble to the Ordinance

would set out the special circumstances of the trial and conviction, and the Ordinanco itself would take power, notwithstanding those proceedings, for the conveyance in custody and subsequent handing over to the French authorities of the prisoners.

This seems, and no doubt is, in the abstract, a sufficiently high-handed and object- ionable line of action; but the French request, if it is to be mot at all, can only be met by resort to some rather desperate expedient, and perhaps all that can be said in favour of this particular suggestion is that it is possibly rather less objectionable than the others.

There only remains the alternative of courteously refusing the French request, and explaining the grounds which, to the regret of His Majesty's Government, render it impossible to comply with it. If this course be adopted, we shall, at any rate, be able to explain that in the special circumstances the sentence of death has been commuted to one of penal servitude for a considerable term, since in any case the prisoners, hav- ing been once respited, cannot consistently, with the observance of the ordinary humane practice in such matters, subsequently be executed.

Looking at the case in its purely legal aspect, this, as it appears to me, is the only satisfactory way of dealing with it. I believe also that it is the only way that will not create great dissatisfaction and distrust in the Protectorate, and injuriously affect British prestige in the eyes of the inhabitants.

It will, no doubt, not be acceptable to French susceptibilities, and should this course be adopted, the pill will require careful gilding before it is "exhibited."

W. E. DAVIDSON.

Foreign Office,

November 26, 1901.

Report-

No question of law arises in this case. These men, having committed a murder within the jurisdiction of the British Courts, have been properly tried and condemned to death.

It appears to us, however, to be clear that they were given up by the French officer under a misconception. Ile was not aware that they were French citizens, and the analogy of the Extradition Treaty, though it does not apply, cannot be ignored.

In these circumstances, we think that it would be proper, provided that satis- factory assurances are given by the French Government that these men will be put on their trial for the murder, to accede to the demand that they should be delivered over to the French authorities. This course would be in accordance with the precedents cited by the French Government, and seems to us only proper from the point of view of international good feeling.

At the same time, it would be a grave miscarriage of justice if these murderers should, when handed over to the French, be tried and punished only as deserters from the French army; they should also be tried for the murder of Captain Keyes.

His Majesty's Government cannot, of course, ask the French Government to pledge itself that the decision of the English Judge should be considered as conclusive. by the French Court; but we think that, before these men are given up, an assurance ought to be obtained that the trial and sentence by the English Judge will not be any bar to a prosecution in the French Courts, and that they will be put upon their trial for the crime of murder.

We think that the surrender could best be carried out under the authority of an Ordinance which, we understand, can be readily passed-providing for their sur render to the French authorities. Any such Ordinance should, we think, recite the circumstances which point to the propriety of the surrender of these men. Without such an Ordinance, we do not see how the surrender can be legally effected.

November 29, 1901:

R. B. F.

E. C.

10169

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