No. 174.
Mr. Cadwalader to Mr. Seward.
Washington, October 23, 1874.
Sir: Referring to the case of Walter Jackson, and to your dispatch 800, of August 27, with your correspondence with Mr. Williams and with the colonial secretary at Hong-Kong on the subject, as attached thereto, I have to say that this Department has again considered the questions submitted in the light of all the facts now presented by you.
It appears that Walter Jackson was charged with piracy and assault on board the Satsuma, a British vessel, that he escaped from Hong-Kong, was arrested upon a telegram at Shanghai, and as a citizen of the United States claimed your protection; that you thereupon detained him, and in answer to the demand for his rendition, made by the Hong-Kong authorities, informed them that you would consider a request for his delivery, but stated that you were under no obligation to deliver him except in accordance with the rules for extradition of criminals as settled by treaty between the two governments. The Hong-Kong government, learning that Jackson was a citizen of the United States, forthwith declined to proceed further against him, and afterward submitted to you a copy of an opinion of the attorney-general concerning your action in the matter.
The simple question, therefore, is, had you a right to detain a fugitive from British justice at Hong-Kong, found within your consular jurisdiction, or to deliver him up under the extradition treaty between this country and Great Britain? Other questions doubtless arose in your correspendence with Mr. Williams, but that is the important and vital point. In the opinion of the Department, no doubt can exist on this question. The extradition treaty between Great Britain and the United States entitles the British authorities to demand the rendition of persons charged with the commission of the particular crimes mentioned in the treaty, within the jurisdiction of Great Britain, who shall seek an asylum or be found within the territorial limits of the United States, upon a compliance with the provisions of the treaty and of the law to enforce such provisions.
In the case of Walter Jackson all the elements were wanting except the offense charged against him, and extradition proceedings were entirely inapplicable to the case.
Upon the facts shown by you he had escaped from Hong-Kong into the jurisdiction of a foreign country, from which, in the absence of any treaty of extradition, there was no power to return him.
[Page 348]In this view, therefore, all discussion with the colonial authorities at Hong-Kong looking to the rendition of fugitives from British justice who have taken refuge within your consular jurisdiction is inadmissible. The authorities of Hong-Kong seem to concur entirely in this opinion, as shown in their action, declining to make any demand for Jackson, although invited to do so.
Hong-Kong being British territory, the Department does not wish to be understood as holding the converse of the proposition, or as assuming that, in a proper case, the authorities of the United States could not demand the extradition of a fugitive from the justice of the United States who had there sought and found an asylum.
Apart from all questions of extradition, if Jackson was, as represented, a citizen of the United States, and had been arrested and claimed your protection, it was doubtless your duty to interfere in his behalf and to investigate his case. If he had been illegally arrested, it was proper that through your efforts he should be set at liberty. Such action would be proper in any case.
The objection to your proceedings in this case is not that you interfered in his behalf, but that you proposed to deliver him to the Hong-Kong authorities under the extradition treaty, or by means of such proceedings, to be tried for an offense committed against Great Britain.
Such part of your correspondence with Mr. Williams as refers to jurisdiction over persons on board ships in the waters of China is not referred to, as having no necessary bearing in the questions here discussed.
I am, &c.,