Front Page Titles (by Subject) 39.: The Extradition Treaties Act  6 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
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
39.: The Extradition Treaties Act  6 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 
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).
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.
The online edition of the Collected Works is published under licence from the copyright holder, The University of Toronto Press. ©2006 The University of Toronto Press. All rights reserved. No part of this material may be reproduced in any form or medium without the permission of The University of Toronto Press.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Extradition Treaties Act 
PD, 3rd ser., Vol. 184, cols. 2115–18. Reported in The Times, 7 August, p. 7, from which the variant and response are taken. Goldsmid, now being in the House (see No. 37), moved his amendment to the Bill (see No. 36 for it and the related Acts), to add a clause: “That nothing in this Act, nor in any previous Act relating to Treaties of Extradition, shall be construed to authorize the extradition of any person in whose case there shall be reasonable grounds for belief that his offence, if any, had for its motive or purpose the promotion or prevention of any political object, nor to authorize the extradition of any person the requisition for the delivery of whom shall not contain an undertaking on the part of the Sovereign or Government making such requisition, that such person shall not be proceeded against or punished on account of any offence which he shall have committed before he shall be delivered up, other than the offence specified in the requisition.” Mill spoke after Lord Stanley.
mr. j. stuart mill felt that many of the sentiments which they had just heard from the noble Lord1 were of a very reassuring character, and if the noble Lord were always to be Foreign Secretary, he should not require much further security; but since the country was not likely to be always so far favoured, he could not help regretting that the deliberations of the noble Lord had not led him to frame some other clause, if that already proposed did not meet with his approbation. It should be remembered that if a person charged with political assassination were not given up, he would not necessarily escape punishment; for he might still be prosecuted in the country where he had sought refuge. Nobody wished that political should enjoy any more impunity than any other kind of assassination; but if we had only the alternative of trying in this country persons charged with political offences, or of giving up everybody charged with homicide of a political character, he (Mr. Stuart Mill) should prefer the former. At the same time, he did not think it impossible to define political offences. Various attempts at definition had, to his knowledge, been communicated to the noble Lord. aOne of them, suggested by a learned Gentleman, he would mention. It was,a “Any offence committed in the course or in furtherance of any civil war, insurrection, or political movement.”2 That he thought would not include political assassination. It appeared to him that this matter required much more consideration than it had yet received; the more one examined into it the worse it looked. There was at the present moment the utmost uncertainty as to the nature of the inquiry which an English magistrate was bound to make, previous to delivering up any person charged with a political offence. He found in the papers before the House two entirely different views of the law of this country. The Extradition Act said—
It shall be lawful for any justice of the peace, having power to commit for trial, to examine upon oath any person or persons touching the truth of such charge, and upon such evidence as according to the law of that part of Her Majesty’s dominions would justify the apprehension and committal of the person accused if the crime had been there committed, it shall be lawful for the magistrate to commit the prisoner into the custody of the officers of the Power so demanding him.3
Now, it was stated in the able and excellent letter of Lord Clarendon to Lord Cowley, that a magistrate, when called upon in this country to commit any person for trial, was authorized to examine into the truth of the charge; that, according to our practice, when a person has made oath that another person has committed a certain crime, a warrant is issued for his apprehension; and that the next step is to bring the accused person before a magistrate, when the accuser must appear with his witnesses and be confronted with him in open court, and it must be proved to the satisfaction of the magistrate, before committing the prisoner for trial, that there was sufficient primâ facie ground for believing, first, that the crime had been committed, and next, that the prisoner was the party who had committed it.4 According to this view of the law, it would be in the power of the person accused, before the order is passed for delivering him up, to produce witnesses and have them examined. By the treaty now entered into, the prisoner might be delivered up on the production of written depositions. But he had always understood that, although the depositions might be received in evidence, yet conformably with our practice it would be open to the prisoner to produce counter evidence in contradiction to them, which might show them to be untrustworthy. But now look at the memorandum of the Conference at the Foreign Office on the 8th of February. It was there stated that an impression prevailed in France that the English magistrate actually tried the case; and that that impression was unfounded.5 Of course it was, because there was a great deal of difference between the inquiry previous to committal and the actual trial. But, then, the memorandum went on to say, that when the prisoner was brought before the magistrate he would be entitled to have the depositions read in his presence; but that he would not be allowed to controvert the truth of those depositions, or to produce counter evidence, except as to his identity. Could there be a more flagrant case of contradiction between theory and practice? They were entitled to ask Government whether the law laid down in the Act or the practice laid down in the Foreign Office memorandum was right. If the practice were to prevail over the law, a law should be made to legalize it; but it ought to be considered whether such a law would not be an absolute enormity. Could it be dreamt of that even in respect to an ordinary offence, depositions taken unknown to the person charged—which he had no opportunity of disputing—with reference to which he was not permitted to cross-examine his accusers, should be sufficient to require his surrender?6 Were these depositions, produced in evidence in a court in this country, to be made the grounds for delivering up a person to be tried in the country in which the depositions were made, on the sole condition that he was not shown to be the person named in the warrant? If he really were the person charged, was he not to be allowed to tender any evidence to show that the depositions did not establish a case against him? That was a subject on which the noble Lord the Secretary of State should tell them his mind. Then they had been led to think that there was an understanding with foreign Powers, including the Government of France, that political prisoners should not be delivered up. It now appeared, however, that there was no such understanding, but it was assumed that the French Government would not ask them to deliver up such persons. If that was the case, it was extremely honourable to the French Government, or to our own, perhaps to both—honourable to the French Government if they did not desire to have such persons delivered up, honourable to the reputation of our own Government in foreign countries, if the absence of the demand was grounded on a conviction that it would not be complied with. They had the noble Lord’s assurance that he would not deliver up such persons, but they ought to have some more complete security. Was that intention grounded on an understanding that the treaty did not require us to give up persons charged with political murder, or on a belief that, although the treaty did bind us to deliver them up, the demand would not be made? Surely it would have been better to have some words inserted in the Act showing that it was not the intention of Parliament that the Act should authorize the extradition of political offenders. It was admitted that the Act in terms admitted the extradition of political offenders, but we were told that the right was not exercised. That might be the case with regard to a particular Sovereign, but what security had they for the conduct of his successors. It seemed now that there had not been even a verbal understanding, and that absence of any demands from which it had been sought to infer one, might have arisen only from the circumstance that during the period which had elapsed there had not been a sufficiently strong desire for the surrender of any person included in the class referred to, to induce the French Government to demand his extradition. It was said that we could get rid of the treaty in six months, but that could not or would not be done until something irrevocable had taken place, until, perhaps, some illustrious exile had been delivered up, whose surrender would cover this country with ignominy. He entreated the noble Lord to apply his mind to the subject, and see if it were possible to insert words that would show at least the will and intention of Parliament that the extradition should not extend to political cases, so that there might be something to be relied upon by the Secretary of State in justification of the course he might have to take. This Act was an experiment which they were going to try for the first time, and surely it would be worth while to try it avowedly as an experiment. Would the noble Lord limit the duration of the Act to twelve months? At the expiration of that time they would perhaps have better means of judging than they had now, and might be able to renew the Act from time to time for a longer period. (Hear, hear.)
[Later in the debate Kinglake suggested acceding to Mill’s suggestion of limiting the duration of the act to one year, so that the House could consider the matter more carefully; Goldsmid’s amendment was withdrawn, and Kinglake’s clause added (col. 2124). The Bill thus amended passed its third reading.]
[1 ]Stanley, Speech on the Extradition Treaties Act Amendment Bill (6 Aug.), PD, 3rd ser., Vol. 184, col. 2114.
[a-a]TT He would suggest something like this:—
[2 ]The originator has not been identified. Edward George Clarke (1841–1931), A Treatise on the Law of Extradition (London: Stevens and Haynes, 1867 ), p. 6, quotes this definition, and attributes it to Mill.
[3 ]6 & 7 Victoria, c. 75, Sect. 1.
[4 ]“The Earl of Clarendon to Earl Cowley” (10 Jan., 1866), in “Correspondence Respecting the Extradition Treaty with France,” PP, 1866, LXXVI, 375–8. Henry Richard Wellesley (1804–84), 1st Earl Cowley, was Ambassador to France.
[5 ]“Memorandum of the Conference at the Foreign Office” (8 Feb., 1866), ibid., p. 390.
[6 ]As in the French Code d’instruction criminelle, Livre I, Chap. vi, Sect. iii, Arts. 71–3.