No. 166.
Mr. Hunter
to Mr. Seward.
Washington, August 31, 1874.
Sir: Your dispatch No. 791 in reference to the delivery of a criminal named Walter Jackson to the Hong-Kong government, and inclosing a copy of a letter addressed you by J. Gardiner Austin, colonial secretary, and your reply, and also a copy of your dispatch to Mr. Williams, chargé d’affaires at Pekin, is received. From the correspondence with the Hong-Kong government it appears that Walter Jackson, having been arrested in Shanghai, claimed to be an American citizen, and was delivered to you at your request; that this information being conveyed to Hong-Kong, a requisition was made upon you by letter from the colonial secretary for the delivery of Jackson, and that you informed him that while you would hold him a reasonable time to receive the evidence upon which the requisition was made, you were under no obligation to deliver the prisoner except in accordance with the provisions for the extradition of criminals as settled by treaty between the British government and the United States.
The Department is somewhat at a loss to ascertain the precise intention of the government of Hong-Kong by its demand. According to settled usage in the United States, criminals are not delivered up on the demand of a foreign state except pursuant to the provisions of a [Page 339] treaty. If the request of the Hong-Kong government was intended to be a demand for extradition in accordance with the provisions of the treaty with Great Britain of 1842, it is sufficient to say that the treaty provides for the delivery of persons who, charged with certain crimes committed within the jurisdiction of either, “shall seek an asylum or shall be found within the territories of the other,” where proper proceedings shall be taken.
It is necessary, in the opinion of this Department, that the person whose extradition is sought shall be not only within the jurisdiction, but within the actual territory of the United States. No authority is given to any diplomatic or consular officer to grant a warrant of extradition. Upon an examination of the request made by the colonial secretary, the absence of the usual statement that the prisoner is a fugitive from British justice and within the territory of the United States will be noticed, and the fact that the proceedings were dropped on the reception of your note is quite significant.
I am, &c.,
Second Asssistant Secretary.