Mr. Blaine to Mr. Denby.
Washington , December 7, 1891 .
Sir: Your dispatch No. 1401, of the 10th of last October, has been received. It presents the question whether a consul can deliver up a fugitive from justice, found on board an American ship in an open treaty port in China, to the justice of a state with which the United States have a treaty of extradition, the offense charged being comprised in such treaty.
No specific case is presented for consideration and instruction. Your inquiry appears to be made out of abundant caution, in view of the present perturbed condition of China and the possibility of the smuggling of arms by a foreigner for insurrectionary purposes, joined to unfounded rumors that foreigners were about to seize the the Foo-Chow arsenal.
You, however, refer to a previous case, involving the principle covered by your inquiry, which was reported in your dispatch No. 906, of June 8, 1889, and which appears to have passed unnoticed by the Department.
In that case a Spanish subject, a convict in the prison at Manila, escaped and took refuge on an American ship, the Rio, bound for Amoy. On reaching that port the Spanish consul seems to have called upon the United States consul to deliver up the fugitive, which our consul declined to do without instructions from you. Thereupon the Spanish [Page 75] chargé d’affaires made a requisition upon you for an order to surrender the man. You directed the consul to surrender the fugitive “on proof of his identity under the extradition treaty with Spain.” Your decision was in part influenced by a passage found in Wharton’s International Law Digest (section 271a, p. 804, vol. 2), wherein the principle is laid down that if “a person on board the foreign ship should be charged with a crime for the commission of which he would be liable to be given up, pursuant to an extradition treaty, the commander of the vessel may give him up if such proof of the charge should be produced as the treaty may require.”
I can not, however, infer from the circumstances of the case which called forth this expression of the views of the Department, that it was the intention of Mr. Fish to declare the commander of the vessel competent to execute a treaty of extradition by surrendering, under its provisions, a person demanded on an extraditable charge. The context shows that the case in question arose on board a vessel of war, and that the refusal of her commander to surrender a fugitive charged with theft was approved, on the ground that the powers of the commander include discretion as to whom he may admit on board, even to the extent of refusing to recognize an application to give up a man on board who may have committed an offence on shore. The case, therefore, really resolved itself into a question of internal discipline on a vessel of war, a matter within the commander’s control, and not of compliance with a foreign demand of extradition. Had the Amoy incident which you reported occurred in respect to a national war ship, it is clear that her commander would have had discretionary power to refuse to receive the fugitive at Manila, or, in the event of his being found on board without consent, to set him ashore or give him up to any local authorities at Manila or Amoy or anywhere, just as in the case of any other stowaway. A decision under his discretionary power as commander, would doubtless be aided by satisfactory proof that the fugitive was amenable to justice; but the commander would not necessarily be deemed competent to perform the judicial functions of a commissioner in extradition, or to fulfill the requirements of the treaty as to the form and mode of surrender. The treaty serves him merely as a convenient guide, by analogy, not as a precept. A naval commander can not execute the extradition treaty under the laws of the United States or in conformity with its express stipulations. No order of his, for instance, would legally take the place of the warrant of surrender, which can only be issued by the Secretary of State after due fulfilment of the precedent judicial requirements.
The same course of reasoning applies to the powers of the United States minister to grant extradition in such a case. He has no such power, by statute or treaty. Neither has a consul. As you have observed “no United States statute vests this power in him.” To vest the judicial power of granting extradition in a minister or consul in European or other countries of sovereign territorial jurisdiction, would need the special agreement of treaties to that end. You may recall the recent incident of the killing of Gen. Barrundia on board an American steamer in the port of Guatemala when he, a fugitive, resisted arrest at the hands of Guatemalan officers armed with an order of surrender addressed by the minister to the captain of the vessel. Apart from the question of political asylum there involved, the action of Minister Mizner was disavowed because of his having so far exceeded his legitimate authority as to sign the paper which, in the hands of the officers of Guatemala, became their warrant for the capture of General Barrundia.[Page 76]
There is not only no basis for the introduction of the doctrine of conventional extradition in this class of cases, but its assumption in practice might prove inconvenient and unsound, even in countries like China, where diplomatic and consular officers are clothed with extraterritorial judicial powers. It would evidently introduce a complication into the now settled question of national jurisdiction if a foreign member of the ship’s company could be demanded in extradition by the representative of the state of which he is a citizen or subject, while in the case of a passenger or fugitive on board the ship, the operation of such an arrangement could not fail to be accidental and irregular.
So far as the hypothetical questions presented by you relate to persons on board an American merchant vessel in a Chinese port who are not officers or seamen of the ship, it is not seen why any nonpolitical case arising may not be readily disposed of, either under the usual authority of the responsible master or under the ordinary jurisdictional procedure of the consular courts, without resorting to the fiction of compliance with a treaty of extradition. It is not practicable for this Department to define the discretionary powers of the captain of a merchant vessel in respect to receiving on board persons not of his ship’s company, but the power of the consul to bring before him, by a warrant of arrest on due complaint, any person on board a national vessel in port, is hardly open to dispute. With the accused before him, the consul proceeds to determine whether the case is lawfully within the jurisdiction of his court. It not infrequently happens that a consul, sitting as an extraterritorial judge, finds that he has not cognizance of the case, and turns the accused over to the court of competent jurisdiction. By these regular judicial proceedings in respect to common criminal charges, and perhaps in other equally normal ways, the contingencies you apprehend can probably be met.
I conclude, therefore, that in dealing with the cases you suggest it is desirable to eliminate the idea of formal conventional extradition.
A copy of the Barrundia correspondence is inclosed for your perusal. You will doubtless find therein other considerations applicable to the point in hand.
I am, etc.,