Mr. Denby to Mr. Blaine.
Peking , October 10, 1891 . (Received November 28.)
Sir: I have the honor to inform you that I consider it desirable that you should instruct me as to a question of extradition which has never been determined by the Department, and is not treated in the recent excellent work on extradition by Hon. John Bassett Moore. In section 109, page 140, volume I, and section 89, page 100, same volume, this author holds that the consuls in China have not the power of extradition from their territorial consular districts.
The question that I present is whether a consul can direct an absconding criminal, found on an American ship in a Chinese port, to be delivered up to a nation with which we have an extradition treaty.
It is familiar law that merchant vessels on the high seas are constructively regarded as a part of the territory of the nation to which they belong. (See section 104, page 135, volume I, of the book cited.) This principle, as between Great Britain and the United States, has been extended so as to make the flag the test of jurisdiction in the ports of eastern countries where extraterritoriality prevails.
In exceptional cases the judicial authority of consuls over persons serving on American vessels in China and Japan has been construed as authorizing consular officers to assume jurisdiction where offenses are committed on shore by foreigners serving on board American merchant vessels. See treaties, 1776–1887, p. 1284. If, then, an American ship lying in a Chinese port is thus to all intents and purposes held to be American territory, can a consul exercise the right of extradition as to a person aboard thereof where a proper case arises?
I fear that the answer may be that he can not, because no United States statute vests this power in him, and the regulations in force for the consular courts are silent on the subject. The difficulty would then have to be met by an act of Congress, or, if that be possible, by a new regulation decreed by the minister.
I respectfully call your attention to my dispatch, No. 906, of June 8, 1889, in which the identical case mentioned is reported. A convict escaped from the Manila penitentiary and embarked on an American ship bound for Amoy. As we have an extradition treaty with Spain, I directed the consul to surrender him to the Spanish authorities upon proper proof being made. The man escaped before arrest and nothing was done.
The Department simply acknowledged my dispatch and made no comment thereon. The recent riots in China and the smuggling of arms by a foreigner for insurrectionary purposes and rumors wide-spread that foreigners were about to seize the Foochow arsenal—which are without foundation—have directed my attention again to this question of extradition, among other questions touching the criminal jurisdiction of the consuls.[Page 70]
I would be glad if you would authoritatively settle the question now presented, as grave results might ensue from wrongful instructions to the consul by this legation.
I have, etc.,