Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow 36.: The Extradition Treaties Act [1] 3 AUGUST, 1866 - The Collected Works of John Stuart Mill, Volume XXVIII The Collected Works of John Stuart Mill, Volume XXVIII - Public and Parliamentary Speeches Part I November 1850 - November 1868

Return to Title Page for The Collected Works of John Stuart Mill, Volume XXVIII The Collected Works of John Stuart Mill, Volume XXVIII - Public and Parliamentary Speeches Part I November 1850 - November 1868

Search this Title:

Also in the Library:

Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

36.: The Extradition Treaties Act [1] 3 AUGUST, 1866 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXVIII The Collected Works of John Stuart Mill, Volume XXVIII - Public and Parliamentary Speeches Part I November 1850 - November 1868 [1850]

Edition used:

The Collected Works of John Stuart Mill, Volume XXVIII - Public and Parliamentary Speeches Part I November 1850 - November 1868, ed. John M. Robson and Bruce L. Kinzer (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1988).

Part of: Collected Works of John Stuart Mill, in 33 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


36.

The Extradition Treaties Act [1]

3 AUGUST, 1866

PD, 3rd ser., Vol. 184, cols. 2023–6. Reported in The Times, 4 August, p. 7, from which the variants and reponses are taken. Mill spoke in the debate on the second reading of “A Bill Intituled An Act for the Amendment of the Law Relating to Treaties of Extradition.” 29 & 30 Victoria (26 July, 1866), PP, 1866, III, 39–42. The Bill eventually passed (see No. 39), though Mill says in the Autobiography that he “joined with several other independent Liberals in defeating an Extradition Bill, introduced at the very end of the session of 1866 and by which, though surrender avowedly for political offences was not authorised, political refugees, if charged by a foreign government with acts which are necessarily incident to all attempts at insurrection, would have been surrendered to be dealt with by the criminal courts of the government against which they had rebelled: thus making the British Government an accomplice in the vengeance of foreign despotisms” (CW, Vol. I, pp. 282–3). He may have in mind that his proposal to limit the duration of the Act to one year had later been accepted (No. 39). In any case, as he says further: “The defeat of this proposal led to the appointment of a Select Committee (in which I was included) to examine and report on the whole subject of Extradition Treaties; and the result was that in the Extradition Act, which passed through Parliament after I had ceased to be a member, opportunity is given to any one whose extradition is demanded, of being heard before an English Court of justice to prove that the offence with which he is charged is really political. The cause of European freedom has thus been saved from a serious misfortune, and our own country from a great iniquity.” (Ibid., p. 283.) For Mill’s part in the Select Committee, see App. B.

sir, I do not mean to say anything against the French Government, but I think it is neither in any way improper nor at all impertinent to the question to say something about the French law, and particularly those parts of it which are thought most defective by the best Judges in France itself. There are many things in that law which are worthy of great praise, and many from which we in this country have a great deal to learn; but I never met with any enlightened Frenchman who did not think that the worst part of the French law is the law of criminal procedure, and that the mode in which the preliminary evidence is taken is the worst part even of that.1 The depositions which are taken preparatory to a criminal trial in France by the juge d’instruction are taken in secret. They are not taken in the presence of the accused; he is not confronted with the witnesses, much less has he any opportunity of cross-examination. It is, therefore, the easiest thing in the world to get up a false charge against a person, if on the part of any other person there is the slightest disposition to do so. I have, indeed, much confidence in the love of justice and the integrity and dignity of the French Judges, who, very often, when the trial comes on, are able to prevent these great defects in the preliminary proceedings from issuing in final injusticea, but with this final trial the House has nothing to do, fora we are now called upon to surrender the accused persons upon the original depositions only. (Hear.) Now, we are told2 —and it is true—that the committing magistrate has the power, and is bound, to consider whether the evidence is such as would in his own opinion establish a primâ facie case against the accused, sufficient to warrant a committal for trial. But there is great danger lest the magistrate, not being fully aware of the differences between French and English criminal procedure, might be led, unless something is put in this Bill to guard against it, to attach the same weight, or nearly the same weight, to those depositions as if they had been taken in his presence. It would be very desirable if the magistrate is to have the power of ordering the extradition of an accused person, that something should be done in the way of directing him how to exercise it. When even so experienced a magistrate as the Chief Magistrate at Bow Street, appears to have laboured under some misapprehension in this respect,3 it appears to me important that magistrates should receive warning from their superiors not to attach more than the due weight to those depositions. If, however, they attach no more than the due weight to those depositions, the effect desired will not be produced. Consequently, either the French Government will have to waive the point of honour which they are said to entertain,4 or the new Act will be as much a dead letter as was the old one.5 We are told by high authorities, in a place not far from this, that the old Act was an entirely dead letter;6 and it has been said by every one who has spoken in favour of the Bill that the objection to it is equally an objection to the law as it stands, under which we are subject to the same obligations as are now sought to be imposed on us. I admit that nothing can be more harmless in appearance than this Bill. No substantial alteration, it is argued, is proposed in the law, and therefore nobody can possibly object to the Bill. But it unfortunately happens that although nominally there is no alteration, practically there is the greatest alteration in the world. bThe old Act, we are told, has not been acted upon at all—nobody has been surrendered under that Act—and it is precisely in order to call the Extradition Treaty7 out of the condition of a dead letter into that of a practical fact, that this Bill is brought in. If it does not do this, it answers no purpose. Therefore, if the Bill passes, one of two things must ensue: either our magistrates will give up offenders, on evidence which would be in great danger of being insufficient, or it will be necessary to come to us again on some other occasion to reinforce this Bill and make it still more easy to effect the extradition of accused persons. I can conceive that in the case of ordinary offences it may not be necessary to insist upon these considerations. But as soon as an application is made for the extradition of a political offender, we shall find the strongest reasons for hesitating on the question. If the laws of any country afford facilities for getting up a false case, that false case is very much more likely to be got up where political offences are concerned. Political offences eo nomine are not, it is true, included in the Extradition Treaty, but acts really political often come within the definition of offences which are so included. Apply this observation to the case of the French Emperor at Boulogne,8 and you will perceive—as doubtless the Emperor himself would perceive—the force of what I am advancing.b The noble Lord who has introduced this Bill (Lord Stanley) has expressed his willingness, if it be possible, to exempt offences really political from being made the grounds for extradition, under the name of murder, or attempt to murder.9 This declaration is worthy of the noble Lord, and is such as might be expected from his character. I perfectly sympathize in the difficulties he feels. His difficulty is the case of political assassination. I do not pretend, if the only question were with reference to persons who had really done these things, that I should have much to say against it. People who do such things ought to make up their minds to sacrifice their lives; and if they have any honest feeling in the matter they generally do. (Hear, hear.) When there has been an actual attempt at political assassination, it is not perhaps difficult, in most cases, to distinguish between a false charge and a true one. But it is often uncommonly so in the case of complicity in such an attempt; and these are precisely the cases in which there is most danger of a false charge. It is a thing which may happen any day, our being called upon to deliver up some person charged with complicity in such an offence; and this charge may be the most false imaginable, and yet such as is extremely likely to be entertained. If I may offer, merely by way of illustration, a case fresh in the memory of every Member of this House, I will say that Governor Eyre felt convinced that Mr. Gordon was an instigator of the insurrection in Jamaica,10 and on that ground Mr. Gordon was put to death, although the evidence has been pronounced by those who have examined it judicially—one of them expressed himself very strongly on the point in this House11 —utterly insufficient to establish this charge. Well, we have heard no end of testimony from both sides of the House as to what a good man, a clever man, and a blameless man Mr. Eyre was. Well, then, let Mr. Eyre be all this: it follows, that let a man be as good, and wise, and blameless as it is possible for a man to be, he may yet make this mistake; and, if a Governor may make it, a King or an Emperor may make it. We cannot doubt that in such cases depositions will always be forthcoming, and that, if undue weight were attached to these depositions, it would be extremely difficult to resist the extradition of anyone charged with complicity in an attempt on the life of any foreign Sovereign or statesman. The great majority of people, especially people in power, are ready to believe almost anything against their political enemies, especially those who have said or published things tending to excite disapprobation of their conduct; as witness the case of Mr. Gordon. I am not contending for the impunity of these persons. Even those who look with the least horror on political assassination do not doubt that it ought to be punished as murderc. The least the Government of this country could demand in such cases is that the foreign Government should send over here the same evidence that would be necessary to put the man on his trial in the country that shelters him. (Hear, hear.) I cannot approve a Bill under which our magistrates will be called upon to surrender prisoners upon depositions taken in secret, and under no circumstances ought an extradition treaty to deal with political offenders. (Hear, hear.)c

[1 ]Code d’instruction criminelle, Bull. 214 bis (17 Nov.-16 Dec., 1808), Bulletin des lois de l’empire français, 4th ser., Livre I, Chap. vi, Sect. iii, Arts. 71–3.

[a-a]TT [in the past tense PD . But]]

[2 ]Just before Mill spoke, by the Attorney General, Hugh MacCalmont Cairns (1819–85), M.P. for Belfast, in his Speech on the Extradition Treaties Act Amendment Bill (3 Aug.), PD, 3rd ser., Vol. 184, col. 2022.

[3 ]Thomas James Hall (1788–1876) had been Chief Magistrate at Bow Street from 1839 to July 1864. For his misapprehension, see Frederick Thesiger (1794–1878), Baron Chelmsford, the Lord Chancellor, Speech on the Extradition Treaties Bill (19 July), ibid., col. 1055.

[4 ]Cf. ibid., col. 1056.

[5 ]The new Act, resulting from the Bill under debate, 29 & 30 Victoria, c. 121, was given royal assent on 10 Aug., 1866. The old Act, 6 & 7 Victoria, c. 75 (1843), was accompanied by a facilitating Act, 8 & 9 Victoria, c. 120 (1845).

[6 ]In the House of Lords, by Thesiger, speech of 19 July, cols. 1054–5, and by George William Frederick Villiers (1800–70), Lord Clarendon, who had served as Foreign Secretary for many years, on the same occasion, cols. 1058–9.

[b-b]TT It was, however, because the French Government wished to call the treaty out of its present condition of being a dead letter that the present Bill was brought in. The French Government, in fact, wished to have such a law as would have compelled the English Government to give up the present Emperor of the French for shooting the sentinel at Boulogne. (Hear, hear.)

[7 ]“Convention between Her Majesty and the King of the French, for the Mutual Surrender, in Certain Cases, of Persons Fugitive from Justice” (13 Mar., 1843), PP, 1867–68, VII, 257.

[8 ]In 1840 at Boulogne, Napoleon III (1808–73), then Louis Napoleon, with fifty-six followers, failed to instigate a rebellion in the 42nd Regiment, with the aim of establishing himself Emperor of France. For an account mentioning his shooting the sentinel referred to in the variant note, see “Enterprise of Prince Louis Napoleon,” The Times, 10 Aug., 1840, pp. 4–5. (He was elected President in December 1848 and, after a successful coup in December 1851, became Emperor in 1852.)

[9 ]Edward Henry Stanley, Motion on the Extradition Treaties Act Amendment Bill (3 Aug.), PD, 3rd ser., Vol. 184, cols. 2007–8.

[10 ]Eyre, “Despatch to the Rt. Hon. Edward Cardwell, M.P.” (20 Oct., 1865), PP, 1866, LI, 151–60, Sect. 48.

[11 ]Russell Gurney (1804–78), M.P. for Southampton, Speech on the Disturbances in Jamaica (31 July, 1866), PD, 3rd ser., Vol. 184, cols. 1833–4.

[c-c]TT [in the third person, past tense PD ; but if the case be genuine, the foreign Power should take the trouble to send over the evidence, and the accused should be tried here.]]