No. 148.
Mr. Williams to Mr. Fish.

No. 54.]

Sir: I have the honor to submit to you a short correspondence relating to the principle of exterritoriality, which has for Americans in this part of the world a particular interest; and a case like the one here described has not heretofore occurred as a practical question in our relations with the colonial government of Hong-Kong.

The case is briefly this: An American, named W. Jackson, appealed to Mr. Seward for protection against arrest, at Shanghai, on a warrant from the magistracy at Hong-Kong, (inclosure 1,) whose colonial secretary makes a request for the man’s delivery after he had come under the cognizance of the consul-general, and thus indirectly acknowledges his interposition, (inclosure 2.) The latter appeals to the extradition treaty between Great Britain and the United States as containing the rules which must govern the surrender, (inclosure 3;) but after the case had been abandoned, a review of the circumstances leads me to the conclusion that it does not come within the scope of the extradition treaty, (inclosure 4.)

I have no additional information relating to the circumstances under which the alleged piracy was committed, nor why the man Jackson was not sooner arrested, or where he went during the four intervening months; but these details would probably not at all affect the question.

As the Hong Kong authorities have given up the case, it is now only a matter of discussion, whose decision by the Department is requested for guidance in the future. If I learn the reasons why they gave it up I will inform you, should there be anything of interest in them.

I have, &c.,

[Inclosure 1 in No. 54.]

Mr. Seward to Mr. Williams.

Sir: A case has recently occurred, to which I respectfully call your attention. A man named Jackson was some time since arrested by the police of the municipality upon a telegram from Hong-Kong, which stated that he had committed an act of piracy on a British vessel upon the high seas. He was arrested as a British subject, but whether upon a warrant from the British court here I do not know. After arrest he claimed to be an American citizen. I examined his claim and requested the police to deliver him to me, at the same time asking the police superintendent to report the fact [Page 302] to Hong-Kong; when this was done, the Hong-Kong authorities addressed our consul there, and he telegraphed to me that the case against Jackson was prima facie a good one. I responded that I would consider a request for his delivery. I next received a letter from the colonial secretary, a copy of which and my answer I inclose. At a still later moment, I received a telegram from Hong-Kong saying that the prosecution had been abandoned, and I accordingly released the man.

I shall be glad to know whether the course I have taken in this matter meets your approval.

The procedure under the provision of our extradition stipulations with Great Britain is simple and direct, and I doubt whether we can do better than follow it out in each case.

I have, &c.,

[Inclosure 2 in No. 54.]

Mr. Austin to Mr. Seward.

Sir: I am instructed by his excellency Governor Sir Arthur Kennedy to make requisition for the delivery up to justice of Walter Jackson, who is charged with the crimes of piracy and of assault with intent to commit murder within the jurisdiction of Great Britain, namely, on the high seas, on board the British bark Satsuma, on or about the 29th of January, 1874. A warrant for the apprehension of the said Walter Jackson to answer the above charge of piracy has been issued from the magistracy of this colony, upon sworn information laid before a magistrate.

I have, &c.,

[Inclosure 3 in No. 54.]

Mr. Seward to Mr. Austin.

Sir: I have had the honor to receive a letter from yon dated the 4th instant, in which you state that you are instructed by Governor Kennedy to make requisition for the delivery up to justice of Walter Jackson, who is charged with the crimes of piracy and of assault with intent to commit murder within the jurisdiction of Great Britain, namely, on the high seas, on board a British vessel, and that a warrant for the apprehension of Jackson to answer the charge of piracy has been issued from the magistracy of the colony upon sworn information before the magistrate.

I hold under arrest the person referred to, and will detain him until the government of Hong-Kong has had reasonable opportunity to submit to me the evidence upon which this requisition is made.

I desire to point out that I am under no obligation to deliver Jackson excepting in accordance with the provisions for the extradition of criminals as settled by treaty between our governments.

At the same time, if, as I may judge from the informality of the demand made upon me, it is the opinion of the colonial authorities that a simpler and more rapid procedure than that indicated in the treaty referred to is reciprocally desirable, I shall be very glad to learn the views of the governor upon this subject, or to learn that he has communicated these views in any way to the superior authorities of my Government.

I have, &c.,

[Inclosure 4 in No. 54.]

Mr. Williams to Mr. Seward.

Sir: I have received your dispatch of the 26th of last June, (No. 374,) with its inclosures, relating to the case of Walter Jackson, a seaman belonging to the British ship Satsuma, who was charged with complicity in a case of piracy, and assault with intent to murder, on board that vessel, but who, having escaped to Shanghai, claimed your protection from arrest under a warrant from the British authorities of Hong-Kong, because of his being an American citizen.

This case presents some peculiarities which render it worthy a careful examination. The piracy is said to have been committed on or about the 29th of last January, and Mr. Austin’s [Page 303] letter is dated June 6, or more than four months after, during which interval it is not said where the ship went, or where Jackson escaped from her, but he had then been arrested in Shanghai as a British subject. He then applied to you for protection against this arrest, solely on the ground of his citizenship. You consented to protect him, and proposed to Mr. Austin to detain him until the government of Hong-Kong had had reasonable time to submit to you the evidence upon which the requisition was made; adding, as a reason, that you are “under no obligation to deliver Jackson, except in accordance with the provisions for the extradition of criminals, as settled by treaty between the respective governments.”

In my view the extradition treaty between the United States and Great Britain does not apply to this case at all; and if so, you bad consequently no power to interpose to prevent the rendition of Jackson from Shanghai by the municipal police on the warrant of the Hong-Kong government. It seems to me that the provisions of that treaty are intended to apply only to the territory of the United States, and they cannot be extended to the territory of the Emperor of China. Neither of the two governments in question has any need of an extradition treaty with China, for she has yielded all her rights over the persons of the subjects of both nations, and they cannot exchange or avoid their allegiance within her territory.

The phraseology of the treaty shows that crime must be committed within the jurisdiction of either, and that the criminals must have sought an asylum or be found within the territories of the other nation. This upholds my conclusion that Jackson, in the eye of the law, was still a British subject, and amenable to the laws of Great Britain. He was charged with piracy on British territory, and the British treaty with China gave the authorities of Hong-Kong power to claim him anywhere in her territory. But if a native-born British subject had committed piracy on board an American ship, and had fled to Hong-Kong to evade arrest from your consular warrant, the stipulations of the extradition treaty would properly guide your measures taken to execute a writ of habeas corpus, and bring him up for trial in your court in China, for the simple reason that that island is British territory. The essential element of that treaty being territorial jurisdiction, its stipulations could not apply in Jackson’s case, under the present circumstances, but would have done so if they had been reversed as above supposed.

The case of David Williams may be referred to. He was tried in your consular court in 1864 for piracy and murder, convicted, and sentenced to be hung, but appealed to the British consul to protect him because he was a Welshman by birth. The appeal was denied because the crime was committed under the American flag, though in Chinese waters; but neither party referred to the extradition treaty, which was felt to be totally inapplicable, because neither of them had territorial jurisdiction where the crime was committed.

Jackson could not escape his accountability for his crime by leaving his ship and fleeing to China, and there pleading his birthright of an American citizen, to exempt him from British jurisdiction, and your evident intention was to deliver him up as soon as the call was presented, but I conclude that you had no right to detain him.

If your interposition had any influence in preventing his trial and a merited punishment of his crime, I regret that it was extended to him, but rather infer that other things may have come to light to induce the authorities in Hong-Kong to abandon the prosecution.

I shall communicate a copy of this dispatch to the British minister here for transmission to Sir Arthur Kennedy.

I am, &c.,