No. 148.
Mr. Williams to Mr. Fish.
Legation of
the United States,
Peking, August 15, 1874.
(Received October 12.)
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.
United
States Consulate-General,
Shanghai, June 26,
1874.
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.
Colonial Secretary’s Office,
Hong-Kong, June 5,
1874.
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.
United
States Consulate-General,
Shanghai, June 11,
1874.
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.
Legation of the United States,
Peking, August 11,
1874.
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.,
